Note
FAMILIES, CHILD REMOVAL HEARINGS, AND DUE
PROCESS: A LOOK AT CONNECTICUT'S LAW
I. INTRODUCTION
Over the last twenty years, the child welfare community in the
United States has shaped, witnessed and responded to the dialectical
development of national policy with respect to abused and neglected
children. Through the 1970s emphasis on child protection,' the 1980s
efforts at family preservation,2 and the late 1990s renewed concern with
child safety,3 substantiated incidence of child abuse has steadily and
In Connecticut, reports of child abuse
dramatically increased.
quadrupled between 1970 and 1990. 4 In response to this deluge of
abuse reports, Connecticut's child protection authority, the Department
of Children and Families (DCF), has removed thousands of children
from the care of their parents under orders of temporary custody.
Acting within its parens patriae responsibility, the state has sought to
protect children's safety at the cost of infringing on children's and
parents' fundamental interests in family integrity. As in perhaps no
other situation, when child abuse is alleged, a child's need and right to
remain safe is squarely pitted against both the parents' rights to raise the
child and the child's co-existent interest in family integrity. While not
1. See Duncan Lindsey, Family Preservation and Child Protection: Striking a
Balance, 16 CHILDREN & YOUTH SERvs. REv. 279, 280 (1994).
2.
See Roger
J.R. Levesque,
The Failures of Foster Care Reform:
Revolutionizing the Most Radical Blueprint, 6 MD. J. CONTEMP. LEGAL ISSUES 1, 14
(1995).
3. See James Donald Moorehead, Of Family Values and Child Welfare: What is
in the "Best" Interests of the Child?, 79 MARQ. L. REv. 517, 519-20 (1996).
4. Child Safety in the Home: A Look at Abuse and Neglect, CONN. VOICES FOR
CHILDREN (Conn. Voices for Children, New Haven, Conn.), May 1998, at 3.
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[Vol. 19:125
even the staunchest family preservationist would argue that a child's
physical safety should be sacrificed in any circumstance, the legal
protections constitutionally afforded to parents and children must at the
same time be respected in all circumstances. At its heart, this protection
includes the guarantee that the state will not interfere with a person's
fundamental interests, including an interest in family integrity, without
the benefit of due process of law.
This Note will examine the due process implications of section
46b-129 of the Connecticut General Statutes, which governs the process
of the state's removing a child from a home because of suspected abuse
or neglect.' Both the prior and the present version of section 46b-129
provide for the court's issuance of an ex parte order vesting temporary
custody of the child with the state or some other caregiver, thus
removing a child from his or her parents' custody.6 To address the
immediate need for removal, the earlier section 46b- 129 required that a
removal hearing be held within ten days of the issuance of the order.7
The revised statute expands this ten-day time frame. The law now
requires that the court provide a preliminary hearing at the ten-day
point.8 However, if at the preliminary hearing parents indicate an
intention to contest the removal, 9 a hearing must be scheduled within ten
days from the date of the preliminary hearing. '° It is at this time that
parents have the first meaningful opportunity to present to the court
their version of the facts. In effect, with the 1998 revision of section
46b-129, the time between removal and meaningful due process hearing
is doubled from ten to twenty days. This Note will consider the
constitutional issues at stake in that expanded time frame: namely,
whether the involuntary separation of parent and child for twenty days
violates parents' and children's rights to family integrity with respect to
the Fourteenth Amendment's due process guarantee.
Since neither the U.S. Supreme Court nor the Connecticut Supreme
Court has delineated a time frame necessary to satisfy due process
requirements with respect to removal of a child, a determination of the
Connecticut statute's constitutionality will depend on the application of
5.
6.
7.
8.
9.
10.
See
See
See
See
See
See
§ 46b-129 (1999).
id.; see also id. § 46b-129 (1997).
id. § 46b-129(b) (1997).
CoNN. GEN. STAT. § 46b-129(d) (1999).
id. § 46b-129(f).
id.
CoNN. GEN. STAT.
2000] FAMILIES, CHILD REMOVAL HEARINGS, AND DUE PROCESS
127
specifically articulated balancing tests." How the essential elements of
the test are defined and balanced by a court will depend, in turn, on
relevant case law and on the broader context of American values with
respect to the fundamental interests at issue."
This Note will be developed in seven additional sections. Part II
will trace the evolution of section 46b-129, with special attention to the
most recent amendment. A discussion of due process considerations
relative to section 46b-129 will begin in Part III, which summarizes
procedural requirements attendant to the deprivation of parents' and
children's fundamental interests. Part IV will further develop this
analysis by considering the procedural due process balancing tests
articulated in Mathews v. Eldridge'3 and FDIC v. Mallen.4 In Part V,
the Note will expand the due process analysis by examining the
procedural requirements related to the threatened deprivation of other
constitutionally protected interests of adults and children. Part VI will
present a final element of the due process discussion, an overview of
removal statutes and standards. The first part of the section will survey
the removal statutes of other states. The second part of Part VI will
consider the standards for due process removal hearings as promulgated
by the National Council of Juvenile and Family Court Judges.' 5
11. See FDIC v. Mallen, 486 U.S. 230, 242 (1988); Mathews v. Eldridge, 424 U.S.
319, 335 (1976); see also infra notes 64-176 and accompanying text.
12. See Boddie v. Connecticut, 401 U.S. 371, 380 (1971). The Court held as
unconstitutional Connecticut's practice of denying to indigents access to the courts (in
dissolution actions) solely because of individuals' inability to pay court fees and costs.
The Court noted that "[tihe State's obligations under the Fourteenth Amendment are not
simply generalized ones; rather, the State owes to each individual that process which, in
light of the values of a free society, can be characterized as due." Id.
13. See Mathews, 424 U.S. at 335. In a claim for social security benefits, the
Court articulated and applied a three-part balancing test to determine whether
administrative procedures violated procedural due process rights. See id.
14. See Mallen, 486 U.S. at 242. The Court reviewed FDIC's order prohibiting an
indicted bank official from participating in the bank's operation without the official's
first having the opportunity for a pre-suspension hearing. In forming its opinion, the
Court applied the Mathews v. Eldridge balancing test which the Court modified to
address the issue of post-deprivation, rather than pre-deprivation, due process hearings.
See id.
15.
See NATIONAL COUNCIL OF JUVENILE & FAMILY COURT JUDGES, RESOURCE
GUIDELINES: IMPROVING COURT PRACTICE IN CHILD ABUSE & NEGLECT CASES 29-44
(1995) [hereinafter RESOURCE GUIDELINES]. The Resource Guidelines are national
standards for procedural steps, time frames, and judicial practice with respect to timely
and effective abuse and neglect hearings. The Resource Guidelineswere developed by a
committee of the National Council's active judges and representatives of the National
Conference of Chief Justices and the American Bar Association Judicial Administration
NATIONAL CHILD WELFARE RESOURCE CTR. FOR ORGANIZATIONAL
Division.
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To evaluate the due process implications of section 46b-129, Part
VII of the Note will examine the Connecticut statute as it stands in relief
against the background of specific tests, case law on procedural due
process, and national and recommended practice. In Part VIII, the Note
will consider possible remedies to any procedural deficits intrinsic to
section 46b-129.
II. STATUTORY HISTORY
The Connecticut law which evolved into the current section 46b129 was first codified in 1969 pursuant to Public Act 69-794.16 That law
referred to the court's issuance of a "show cause" order;"1 no provision
for any subsequent hearing was included.18 In 1973, with the passage of
Public Act 73-205, major reforms with respect to child welfare were
initiated. That legislation specifically provided for the court's ordering
the child's removal from his parents' care in order to "safeguard his
welfare."' 9 The statute also specified that a hearing "shall be held within
ten days from the issuance of such order on the need for such temporary
care and custody."20 Since its passage in 1973, the law governing
removal and hearing remained substantively unchanged until 1998 and
the passage of Public Act 98-24 1.21
Presently, where a child's safety is thought to be in danger because
of suspected abuse or neglect, there are, in general, two procedures by
which the child can be removed from her parents' custody. Under
section 17a-101(d) of the Connecticut General Statutes, a physician may
invoke a ninety-six hour hold to keep a child she is examining in the
custody of the hospital while diagnostic tests are performed to ascertain
whether the child has suffered from abuse.22 Under the same statute, a
DCF employee or a law enforcement officer may remove a child from
his or her surroundings if there is "probable cause to believe that the
child.., is in imminent risk of physical harm from his surroundings and
that removal ...is necessary to ensure the child's safety ... ."'
IMPROVEMENT,
STATE OF CONNECTICUT COURT IMPROVEMENT PROJECT REPORT
(1996).
16.
See CONN.
17.
18.
19.
See id. § 17-61.
See id.
Id. § 46b-129 (1973).
GEN. STAT. §
20.
CONN.GEN.
21.
22.
23.
See id. § 46b-129.
See id. § 17a-101f.
Id. § 17a-101g(c).
STAT.
17-62(b) (1969).
§ 46b-129 (1973).
In
9
20001 FAMILIES, CHILD REMOVAL HEARINGS, AND DUE PROCESS
129
either of the above instances, no parental consent is necessary.'
The
period of removal may not exceed ninety-six hours."
In addition to and sometimes following this ninety-six hour
emergency removal, Connecticut General Statutes provides for the
issuance of orders of temporary custody. 26 In situations where it appears
that a child "is suffering from serious physical illness or injury or is in
immediate physical danger from his surroundings" and must be
removed in order to ensure his safety, the Commissioner of the
Department of Children and Families or other named official may apply
to the court for an order of temporary custody. 27 To support this
application, the party seeking the order must file with the court both a
petition requesting that the child be adjudicated neglected, uncared for,
or dependent, and "verified affirmations of fact." 2 After reviewing the
application and its supporting statements, the court may order the
parents of the child to appear and show cause why the child should not
be removed. In the alternative, the court may issue an ex parte order
temporarily removing the child from the parents' custody.29
Before its latest revision which became effective on October 1,
1998, section 46b-129 specified that where a child had been removed
pursuant to an ex parte order of temporary custody, a hearing on the
issue of that removal would be held within ten days.30 As amended by
Public Act No. 98-241, section 46b- 129 now provides that a preliminary
hearing on the order of temporary custody be held in ten days. The
preliminary hearing is convened to (1) advise the parents of the (state's)
allegations, (2) appoint an attorney for the child, (3) appoint an attorney
for indigent parents (as requested), (4) advise parents of their rights, (5)
accept pleas, and (6) make those interim orders which the court
determines to be in the child's best interests. 3' Section 46b-129, as
recently amended, also calls for a second hearing, within ten days, in
situations where parents contest the removal of their children. 32 At this
twenty-day hearing, the court hears testimony and reviews evidence
24. See CoNN.GEN. STAT. § 17a-101g(c), (d) (1999).
25. See id.
26. See id. Orders of Temporary Custody are often, but not always, preceded by a
"96-hour hold." When a 96-hour hold is invoked, the time between removal and hearing
is effectively increased by four days.
27. CoNN.GEN. STAT. § 46b-129(b) (1999).
28. Id.
29. See id.
30. See id. § 46b-129 (1997).
31. See CoNN. GEN. STAT. § 46b-129(c)(1)-(6) (1999).
32. See id. § 46b-129(f).
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with respect to the need for continued out-of-home care. Ultimately, as
a result of the twenty-day hearing, the court either vacates the order of
temporary custody and returns the child to her parents or confirms the
order of temporary custody, effectively vesting custody in DCF or some
person other than the parent.
In substance, the revision of section 46b-129 doubles the time that
parents who have temporarily lost custody of their children must wait
before having the opportunity to meaningfully contest the removal.
While the court will offer a preliminary hearing ten days after removal,
that hearing, by statute, does not offer parents the opportunity to present
the facts as they see them. In effect, parents cannot hope to remedy
what may have been an erroneous decision to remove a child until up to
twenty days after that removal.
No specific information is available with respect to the court's pre1995 practice in offering ten-day hearings. However, based on the State
of Connecticut Court Improvement Project Report released in May
1996, the ten-day hearing requirement had become problematic in most
of Connecticut's juvenile courts.33 The report indicated that, as of
November 1995, parents who wished to contest an order of temporary
custody waited, on average, forty days for a hearing; 3 by February
1996, that time was reduced to 23.8 days. 35 The report noted that
removal hearings, once begun, were often not completed for weeks or
even months, thus effectively delaying any judicial determination with
respect to custody.36
Significant in a discussion of Connecticut's temporary custody and
hearing laws is a 1996 suit filed by a parent whose contested hearing on
an ex parte order of temporary custody was delayed for six months.37
The facts that gave rise to Pamela B. v. Ment involve the court's refusal
to offer a timely hearing to a mother whose nineteen month old child
33.
See NATIONAL CHILD WELFARE RESOURCE CTR., supra note 15, at 38.
Connecticut's Court Improvement Project was undertaken as the result of a 1993 federal
grant designed to assist state courts in comprehensively assessing and ultimately
improving the manner in which child abuse and neglect cases were handled by the
courts. The project report detailed the study of Connecticut's juvenile court system as
undertaken by the National Child Welfare Resource Center for Organizational
Improvement at the Edmund S. Muskie Institute, University of Southern Maine,
Portland, Maine. In its review of courts, the Resource Center assessed 13 specific areas
of concern, and measured results against national standards and practice. See id. at 8-9.
34. See id.
35. See id.
36. See NATIONAL CHILD WELFARE RESOURCE CTR., supra note 15, at 39.
37. See Pamela B. v. Ment, 244 Conn. 296, 303, 709 A.2d 1089, 1094-95 (1998).
20001 FAMILIES, CHILD REMOVAL HEARINGS, AND DUE PROCESS
131
had been removed from her care under an ex parte order of temporary
custody pursuant to section 46b-129(b). When, at the scheduled ten-day
hearing point, the mother appeared in court and challenged the removal
of her child, the mother was informed that because of the court's
overcrowded docket, a hearing would not be convened until six months
later, at the same time that the underlying issues of neglect were
adjudicated.38
The mother in Pamela B. brought suit against Connecticut's chief
court administrator and the Commissioner of the Department of
Children and Families, claiming that these parties had violated her
constitutional right to family integrity by denying her the meaningful
due process of law with respect to a delayed post-removal hearing.39 In
responding to the complaint, a trial court granted the defendants' motion
to strike those portions of the complaint which sought injunctive relief. °
Then, before a second trial court, the defendants moved to strike or
dismiss the complaint, arguing that the court lacked subject matter
jurisdiction with respect to the remaining request for a declaratory
judgment. The defendants' motion was denied. 4' The defendants
appealed that decision and the plaintiff cross-appealed the earlier
42
decision striking her claim for injunctive relief.
The Connecticut Supreme Court heard the appeal and held that the
plaintiffs claim was justiciable in terms of her request both for
injunctive relief and for a declaratory ruling. 3 The case was remanded
to the trial court for a full evidentiary hearing." While the supreme
court did not rule on the issue of delayed temporary hearings, the court's
decision did underscore both the fundamental, "constitutional
significance" of the mother's interests 4 and the "imperative" of fair and
meaningful procedures to safeguard those interests.46 For the Pamela B.
majority, whether or not due process violations occurred was an issue to
be determined by the trial court in light of the chief court
administrator's real ability to meet the demand for timely hearings. 7
38.
39.
40.
41.
42.
43.
44.
45.
46.
47.
See id., 709 A.2d at 1095.
See id. at 304, 709 A.2d at 1095.
See id. at 305, 709 A.2d at 1096.
See Pamela B., 244 Conn. at 305-06, 709 A.2d at 1096.
See id. at 306, 709 A.2d at 1096-97.
See id. at 331, 709 A.2d at 1108.
See id.
Pamela B., 244 Conn. at 309, 709 A.2d at 1098.
Id. at 314, 709 A.2d at 1100.
See id. at 330-31, 709 A.2d at 1107-08.
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For the concurrence, the constitutional due process mandate existed
regardless of the court's resources. 4' As reflected in Pamela B., the
court had not yet defined the limits of removal without the prescribed
procedural protection.
III. PROCEDURAL DUE PROCESS
AND PARENTS' AND CHILDREN'S
FUNDAMENTAL INTERESTS
The Fourteenth Amendment to the U.S. Constitution provides that
no state shall "deprive any person of life, liberty, or property, without
the process of law., 49 Following from this ideal, when an individual is
threatened with the loss of interests determined to be substantively
related to life, liberty, or property, or other interests held to be
fundamental, certain procedural safeguards are due to the individual. 0
Parents' and children's interests in family integrity have been found to
be fundamental."
care
nurt andre These
o therrights" include
52 parents' interest in the custody,
care, and nurture of their children, as well as the child's reciprocal
interest in being raised by his or her parents53 and in maintaining
unbroken emotional attachments. 4 Both parents and children are due,
then, the process of law and the protections that the process affords
when the state seeks to interfere with interests in family integrity. Once
it is determined that due
process applies, there remains the question of
"what process is due., 55
The U.S. Supreme Court has held that the state must provide
parents with fundamentally fair due process proceedings before moving
to destroy family bonds; 56 parents are thus entitled to a hearing before
their children are removed from their custody.57 In general, the nature of
procedural protection requires that hearings on the issue of deprivation
48.
49.
See id. at 343-45, 709 A.2d at 1113-14 (Berdon, J., concurring).
U.S. CONST. amend. XIV, § 1.
50.
See GERALD GUNTHER & KATHLEEN M. SULLIVAN, CONSTITUTIONAL LAW 616
(13th ed. 1997).
51. See Santosky v. Kramer, 455 U.S. 745, 758-59 (1982); Smith v. Organization
of Foster Families for Equality and Reform, 431 U.S. 816, 842 (1977); Stanley v.
Illinois, 405 U.S. 645, 651 (1972); Prince v. Massachusetts, 321 U.S. 158, 166 (1944).
52. See Prince,321 U.S. at 166; see also Stanley, 405 U.S. at 651.
53. See Parham v. J.R., 442 U.S. 584, 600 (1979).
54. See Smith, 431 U.S. at 844; see also Duchesne v. Sugarman, 566 F.2d 817, 825
(2d Cir. 1977).
55. Morrissey v. Brewer, 408 U.S. 471, 481 (1972).
56. See Santosky, 455 U.S. at 753-54.
57. See Stanley, 405 U.S. at 658.
2000] FAMILIES, CHILD REMOVAL HEARINGS, AND DUE PROCESS
133
of certain rights be held before that deprivation occurs" in order to
reduce the risk of the state's erroneous interference with or deprivation
of the fundamental interest. 59 However, the Court has held that in
extraordinary situations, post-deprivation hearings may suffice.6 The
emergency removal of a child because of suspected abuse or neglect in
order to avert imminent harm to the child has been held to be such a
situation. 61 When the hearing cannot be convened prior to the
deprivation, procedural due process requirements are not eliminated but
are postponed.62 These situations require that a hearing be held
promptly.63
Courts have repeatedly stressed the importance of due process
hearings being convened at a meaningful time and in a meaningful
manner. 64 Additionally, procedural due process protections must be
flexible in order to address the nature of the loss which is threatened.65
Proceedings may be informal,66 as long as they satisfactorily provide the
process that is due. 67
The proper test of the sufficiency of due process procedural
protection afforded to parents and children is that articulated in
58. See Board of Regents v. Roth, 408 U.S. 564, 569-70 (1972) (citing Boddie v.
Connecticut, 401 U.S. 371, 379 (1971)).
59. See Jordan v. Jackson, 15 F.3d 333, 345 (4th Cir. 1994). Parents challenged
the constitutionality of Virginia's emergency removal statute, which allowed for a 65hour delay between removal and judicial review. The court found no due process
violation, holding that the requirements of procedural due process may be delayed in
order to avoid the risk of imminent harm, as long as the emergency action received
prompt judicial review. See id.
60. See Boddie, 401 U.S. at 378-79. The Court commented that "an individual
[must] be given an opportunity for a hearing before he is deprived of any significant
property interest, except for extraordinary situations where some valid governmental
interest is at stake that justifies postponing the hearing until after the event." Id.
61. See Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir. 1977) (noting that the
state's assumption of custody of two children without prior judicial review was
permissible when the children's mother experienced an emergency hospitalization); see
also Jordan,15 F.3d at 343.
62. See Duchesne, 566 F.2d at 826.
63. See Jordan, 15 F.3d at 343.
64. See Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (citing Armstrong v.
Manzo, 380 U.S. 545, 552 (1965)); Boddie, 401 U.S. at 377; Pamela B. v. Ment, 244
Conn. 296, 314, 709 A.2d 1089, 1100 (1998).
65. See Mathews, 424 U.S. at 334 (citing Morrissey v. Brewer, 408 U.S. 471, 481
(1972)).
66. See Boddie, 401 U.S. at 378-79; see also In re Juvenile Appeal, 3 Conn. App.
184, 190, 485 A.2d 1362, 1367 (1985). The Connecticut court noted that "certain
procedural informalities are constitutionally permissible" in some juvenile proceedings.
Id.
67. See FDIC v. Mallen, 486 U.S. 230, 242 (1988).
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Mathews v. Eldridge.68 This balancing test requires that three factors be
considered: first, the nature of the private interest which is at issue;
second, both the risk that procedural practice will not protect against the
erroneous deprivation of that interest and the benefit that additional
procedural safeguards might offer; and third, the nature of the state's
interest, including
any administrative
or
subsitutd
o addtionl
"
69 fiscal burdens associated with
substituted or additional requirements. In cases where the procedural
due process issue relates to a delay in the state's provision of a due
process hearing, the Mathews test may be amplified as articulated in
Mallen.0
In determining how long a delay is justified in affording a post-[deprivation]
hearing ... , it is appropriate to examine the importance of the private interest
and the harm to this interest occasioned by delay; the justification offered by
the Government for delay and its relation to the underlying governmental
interest; and the likelihood that the interim decision may have been
mistaken.71
Because the constitutionality of section 46b-129 may turn on the
extent to which a removal hearing may be delayed, this reformulated
test serves as the principal basis on which the statute may be evaluated.
IV. BALANCING TESTS
A. The Nature of PrivateInterests
To begin the first step of the procedural due process analysis
73
articulated in Mathews2 and FDIC,
both the nature of the parents' and
children's interests as well as the harm those interests suffer as the result
of erroneous deprivation must be examined. The U.S. Supreme Court
has held that parents' and children's rights to family integrity, though
not specifically articulated in the U.S. Constitution, are protected in the
Due Process Clause of the Fourteenth Amendment, the Equal Protection
68.
at 335).
69.
70.
71.
72.
73.
See Santosky v. Kramer, 455 U.S. 745, 754 (1982) (citing Mathews, 424 U.S.
See
See
Id.
See
See
Mathews, 424 U.S. at 335.
Mallen, 486 U.S. at 242.
Mathews, 424 U.S. at 335.
Mallen, 486 U.S. at 242.
2000] FAMILIES, CHILD REMOVAL HEARINGS, AND DUE PROCESS
135
Clause of the Fourteenth Amendment, and the Ninth Amendment.74 The
Court has noted that parents' liberty interests warrant protection even
when parents have lost temporary custody of their children.75
1. Parents' Rights
Basic to parents' and children's interests in family integrity is the
right "to remain together without the coercive interference of the
Parents, specifically, have a
awesome power of the state. 76
fundamental interest in the care, custody, companionship, and
The care and nurture of children
management of their children.
8
With respect to the parents' fundamental
belongs, first, to parents.
right to family integrity, it is clear that the involuntary relocation of any
child from within to outside of the family setting will, by its very intent,
violate this integrity. The sense of familial privacy that serves as the
basis for parents' and children's rights7 9 is, for a short or a long time,
effectively destroyed. For parents, the state's intervention in the family
may entail state inquiry into nearly every aspect of the parent's life:
educational, occupational, social and medical history, child rearing
abilities, home management skills, familial and social relationships,
religious practices, as well as a room-by-room inspection of the home,
itself.80 Beyond this intrusion, the parent's status as (parental) decisionmaker, care provider, and head of household is undermined. With the
removal of the child from the family home the parent loses not only the
custody and companionship of the child, but also the ability to manage
74. See Stanley v. Illinois, 405 U.S. 645, 651 (1972).
75. See Santosky v. Kramer, 455 U.S. 745, 753 (1982). In vacating an order to
terminate the parental rights of a non-custodial parent, the Court held that the
fundamental interests of parents in the care and custody of their children "does not
evaporate simply because [the parents] have not been model parents or have lost
temporary custody of their child to the State." Id.
76. Duchesne v. Sugarman, 566 F.2d 817, 825 (1977).
77. See Santosky, 455 U.S. at 758; Smith v. OFFER, 431 U.S. 816, 843 (1977);
Stanley, 405 U.S. at 651.
78. See Prince v. Massachusetts, 321 U.S. 158, 166 (1944).
79. See Judith G. McMullen, Privacy, Family, Autonomy, and the Maltreated
Child, 75 MARQ. L. REv. 569, 581 (1992). In commenting on the historical
development of the American concept of family, the author notes that "a...
presumption supporting society's reverence for family autonomy [is] that privacy is
good for families and, in particular, enables families to carry out their role of producing
well-adjusted, autonomous individuals." Id. at 572-73.
80. See Mark Hardin, Legal Barriersin Child Abuse Investigations: State Powers
and Individual Rights, 63 WASH. L.REv. 493, 505, 581-82 (1988).
81. See GOLDSTEIN ET AL., BEFORE THE BEST INTERESTS OF THE CHILD 24 (1979).
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and/or provide for the child's care. Other than to request that the child
be placed with a relative, for example, parents are stripped of any power
to ensure their child's well-being.
Notwithstanding unproven
allegations of abuse or neglect, parents whose children are erroneously
removed are denied the recognized presumption 82 that they,
83 as parents,
are the best protectors of, and advocates for, their children.
The harm to the parents' rights to family integrity is done once a
child has been removed. 84 The child who left the parents' care may not
be the same child who later returns. As discussed in Jordan,though, the
issue then becomes the extent to which the harm is mitigated or
exacerbated 5 by the timing of future hearings. In her discussion of
children in foster care, Jennifer Toth has documented, for example, a
study which found that children in foster care were seven times more
likely to be physically abused than were children who lived in their
parents' homes.86 At the least, it can be said that the longer the
separation of parent and child, the longer the parent is deprived of his
right to raise the child and to ensure the child's well being.
Where an agency's motivation with respect to a child abuse
investigation is to find evidence to support the agency's request to
remove the child, 87 any delay between removal and hearing may
consequently result, for the parents, in a greater degree of intrusion.
While investigation of an initial report of suspected abuse or neglect is
absolutely necessary, neither federal nor state case law clearly defines
the limits of that inquiry. 88 "Child protection agencies generally do not
have the sophistication of the police regarding rights of families in child
abuse investigation and may lack strong internal administrative
mechanisms to assure compliance" with federal, state or administrative
mandates.89 When the authority of an agency to investigate is
wrongfully applied, "Fourth and Fourteenth Amendment concerns about
the violation of family integrity" are raised. In Bohn v. County of
Dakota, the U.S. Court of Appeals commented that parents "have a
82.
83.
84.
85.
86.
See Prince, 321 U.S. at 166.
See id.
See GOLDSTEIN ET AL., supra note 81, at 24.
See Jordan v. Jackson, 15 F.3d 333, 345 (4th Cir. 1994).
See JENNIFER TOTH, ORPHANS OF THE LIVING: STORIES OF AMERICA'S
CHILDREN INFOSTER CARE 18 (1997).
87. See Michael Compitello, Parental Rights and Family Integrity: Forgotten
Victims in the Battle Against ChildAbuse, 18 PACE L. REV.135, 149 (1997).
88. See Hardin, supra note 80, at 496-99.
89. Id. at 596-97.
90. Compitello, supra note 87, at 140.
20001 FAMILIES, CHILD REMOVAL HEARINGS, AND DUE PROCESS
137
protectible interest in their reputations." 9' For parents to have the
quality of their family lives investigated because of alleged child abuse,
said the court, exposed the parents "to public opprobrium and may have
damaged their standing in the community. 92 The court further noted
that allegations of child abuse may "erode[] the family's solidarity
internally and impair[] the family's ability to function in the
community." 93 Indeed, parents' loss of their child even temporarily,
whether appropriate or not, implicates not only how the family defines
itself,9 but also how it is defined by others in the community. 9' Where
investigation is improperly motivated, delay between removal and
hearing simply allows more time during which the internal and external
perception of the parents and the family may be denigrated.
2. The Nature of Children'sInterests
Besides the interest in family integrity that children reciprocally
share with their parents,9 children, as individuals, have additional
interests at issue in custody determinations. Most significantly, children
have a protected interest in remaining with their parents. 97 Both the U.S.
Supreme Court and the Connecticut Supreme Court have held that this
right to remain with parents includes the child's interest in maintaining
the emotional attachments to their parents or caretakers.98
The effect of improper state intervention into the realm of family
In their
can be devastating to a child's psychological well-being.9
91. Bohn v. County of Dakota, 772 F.2d 1433, 1436 n.4 (8th Cir. 1985). In a case
involving parents' abuse of their sons, the court held that while the parents' interest in
their reputations was a protectible interest under the due process clause of the
Fourteenth Amendment, procedures available under Minnesota's child abuse
investigation statute were sufficient to protect those interests. See id. at 1441.
92. Id.
93. Id.
94.
See GOLDSTEIN ET AL., supra note 81, at 24.
95. See Bohn, 772 F.2d at 1436 n.4.
96. See Stanley v. Illinois, 405 U.S. 645, 651 (1972); Duchesne v. Sugarman, 566
F.2d 817, 825 (2d Cir. 1977); Pamela B. v. Ment, 244 Conn. 296, 310, 709 A.2d 1089,
1098 (1998); In re Juvenile Appeal, 189 Conn. 276, 284, 455 A.2d 1313, 1318 (1983).
97. See Duchesne, 566 F.2d at 825; In re Juvenile Appeal, 189 Conn. at 284, 455
A.2d at 1318.
98. See Smith v. OFFER, 431 U.S. 816, 844 (1977); Duchesne, 566 F.2d at 825;
Pamela B., 244 Conn. at 310, 709 A.2d at 1098; In re Juvenile Appeal, 189 Conn. at
284, 455 A.2d at 1318.
99. JOSEPH GOLDSTEIN ET AL., THE BEST INTEREST OF THE CHILD: THE LEAST
The authors assert that "emotional
DETRIMENTAL ALTERNATIVE 19-20 (1996).
attachments are tenuous and vulnerable in early life and children need stability of
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[Vol. 19:125
influential and widely cited works, Goldstein, Freud, and Solnit
maintain that "continuity of relationship is essential for a child's healthy
development." ° Arguing from a similar perspective, Michael Wald has
observed that "[e]ven when placed in good environments ....[children]
suffer anxiety and depression from being separated from their parents,
they are forced to deal with new caretakers, playmates, school teachers,
etc. As a result, they often suffer emotional damage and their
development is delayed."' '° The emphasis of these "minimum state
interventionists" stresses the importance of decision-making which
reflects the least detrimental alternative available to children. 0 2 Barring
serious bodily injury, say the minimum interventionists, the child's
caretaking parent represents that least detrimental alternative. ' 3 A
child's attachments to her siblings may also figure into her recognizable
need to maintain emotional attachments.1°4
Goldstein and his colleagues also point to the uniqueness of the
child's sense of time as a crucial factor in placement decisions. '°5 With
respect to a young child, for example, these authors comment,
Emotionally, and intellectually, an infant or toddler cannot stretch her waiting
more than a few days without feeling overwhelmed by the absence of her
parents.... [H]er emotional and intellectual memory has not matured
sufficiently to enable her to hold on to the parent she has "lost." During such
an absence, the child under two years
1 of age "quickly" latches on to the new
06
adult who cares for the child's needs.
As a child grows older, her experience of time develops such that
by the time of adolescence, the child's sense of time resembles that of
relationships for their healthy growth and development." Id. at 20; see also Pamela B.,
244 Conn. at 314, 709 A.2d at 1100 ("The delays that are annoying and frustrating to
adults ... can permanently damage children and their families." (quoting ABA
PRESIDENTIAL WORKING GROUP OF THE UNMET LEGAL NEEDS OF CHILDREN & THEIR
FAMILIES, AMERICA'S CHILDREN AT RISK: A NATIONAL AGENDA FOR LEGAL ACTION 56
(1993))).
100. GOLDSTEIN ET AL., supra note 99, at 19.
101. Michael Wald, Thinking About Public Policy Toward Abuse and Neglect of
Children, 78 MICH. L. REv. 645, 662 (1980).
102. See GOLDSTEIN ET AL., supra note 99, at 50.
103. See id. at 112.
104. See In re Juvenile Appeal, 189 Conn. 276, 285, 455 A.2d 1313, 1319 (1983).
105. See GOLDSTEIN ET AL., supra note 99, at 41. The authors maintain that the
younger the child is at the time of removal from parental custody, the more apt the child
is to experience her removal, even for a short time, as a "permanent loss accompanied
by feelings of helplessness, abandonment, and profound deprivation." Id. at 42.
106. Id.
2000] FAMILIES, CHILD REMOVAL HEARINGS, AND DUE PROCESS
13
an adult.10 7 Especially for the younger child, the length of time spent out
of her parents' custody is significantly related not only to the level of
distress the child experiences, but also to the nature and quality of the
child's attachment to a parent figure.' 8
In addition to the child's interest in family integrity and continuous
psychological attachments, courts have recognized a child's interest in
being safe."° Interventionists, those who advocate for the child's
paramount need for safety, favor a policy of active state involvement in
cases of suspected abuse and neglect."0 Douglas Besharov"' and
Marsha Garrison," 2 for example, have pointed to the detrimental effects
of a child's remaining in a disturbed, abusive home. These scholars
view placement out of the parental home as the best alternative in
situations of maltreatment. "3 Finally, other child advocates who may be
characterized as neither "minimalists" nor "interventionists" have
commented that any removal to ensure safety must be qualified by the
awareness that even temporary placement in a state licensed foster
home
4
can pose, in itself, threats to the child's safety and well-being."
B. Harm Associated with CurrentPractice
The second major factor that must be addressed in a Mathews
analysis involves a consideration of "the risk of an erroneous
deprivation of... [a fundamental] interest through the procedures used,
and the probable value, if any, of additional or substitute procedural
safeguards."" 5
1. The Risk of ErroneousDeprivation
107. See id. at 42.
108. See GOLDSTEIN ET AL., supra note 99, at 41.
109. See Duchesne v. Sugarman, 566 F.2d 817, 826 (2d Cir. 1977); In re Juvenile
Appeal, 189 Conn. at 287, 455 A.2d at 1319.
110. See Moorehead, supra note 3, at 524-25.
111. DOUGLAS J. BESHAROV, RECOGNIZING CHILD ABUSE: A GUIDE FOR THE
CONCERNED 2 (1990).
112. Marsha Garrison, Child Welfare Decisionmaking: In Search of the Least
DetrimentalAlternative, 75 GEO. L.J. 1745, 1780 (1987).
113. See Moorehead, supra note 3, at 526-27.
114. See TOTH, supra note 86, at 18; see also Martha Stone, When Will We Start
Treating This Like a Crisis?,HARTFORD COURANT, June 2, 1998, at A9 (noting that in
the last quarter of 1997, 113 reports of abuse and neglect in Connecticut foster homes
were made).
115. Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
QLR
[Vol. 19:125
This prong of the test anticipates pre-deprivation proceedings
designed to afford both notice and meaningful opportunity to be heard
on the issue of that deprivation. "6 In instances of temporary custody
hearings, the deprivation, the removal of the child, occurs prior to any
opportunity to be heard. The Court has held, however, that the removal
of a child prior to a due process hearing poses no constitutional
violation in the exigent circumstances of imminent threat to a child's
safety. "7 In such instances, the Court has cautioned, a meaningful due
process hearing must be convened as soon as possible after the child's
removal."'i
In the situation contemplated by section 46b-129, parents' first
meaningful opportunity to address the removal of their children may not
occur for twenty or more days after parents' and children's interest in
family integrity had been abrogated. " 9 To speak of the "risk of
erroneous deprivation" is not helpful; the deprivation has, in fact,
occurred. The procedural due process issue relates to the harm
associated with a hearing delayed for twenty days. For such situations,
where the literal application of the Mathews test is unworkable, the
reformulated test of FDIC is pertinent: "[iun determining how long a
delay is justified in affording a post-[deprivation] hearing and decision,
it is appropriate to examine... the likelihood that the interim decision
may have been mistaken."' 20
a. Ex Parte Orders and Error
The decision to issue an order of temporary custody is rarely
without risk of error and may be influenced by any number of factors
related to the specific facts of the case, the child protection and juvenile
court systems involved, the perspective of the decision-maker, and the
decision process itself. This discussion will consider three specific
factors: the factual basis for the order, the policies and the practices of
child protection agencies, and the decision-maker's bias. To support the
correctness of judicial decisions to issue orders of temporary custody,
courts have pointed to the procedural protections inherent in the process
116. See Jordan v. Jackson, 15 F.3d 333, 345 (4th Cir. 1994).
117. See Duchesne v. Sugarman, 566 F.2d 817, 826 (2d Cir. 1977) (quoting Boddie
v.Connecticut, 401 U.S. 371, 379 (1971)).
118. See Morrissey v. Brewer, 408 U.S. 471, 472 (1972); see also Jordan, 15 F.3d
at 343.
119. See CoNN. GEN. STAT. § 46b-129(b) (1999).
120. Jordan, 15 F.3d at 345 (quoting FDIC v. Mallen, 486 U.S. 230, 242 (1988)).
2000] FAMILIES, CHILD REMOVAL HEARINGS, AND DUE PROCESS
141
of issuing an order of temporary custody as safeguards against error.'2 1
In Connecticut, for example, an agency's request for such an order must
be accompanied by affidavits attesting to the affiant's knowledge of
events related to the risk of imminent harm to which a child would be
subjected were she not removed from her family's home. 122 Judicial
review of affidavits to determine a sufficiency of evidence to satisfy a
probable cause finding serves as a further check on erroneous
removal. 23
These measures, however, must be evaluated against the potential
sources of error in the (removal) decision-making process. Error could
result, for example, from inadequate investigation,'24 from over zealous
agency policies, 125 or from judges' biases 26 as they are manifest in the
issuing of temporary orders. In recent years, the tragic consequence of
leaving a child in a dangerous home environment has often been the
subject of front page newspaper headlines, lead stories on television27
news broadcasts, and investigations and reports by child advocates.1
Stories of wrongful removal, on the other hand, are likely to receive no
These studies, if done, are rarely available for
public attention.
28
review.1
For example, in a 1992 (San Diego County, California)
report, after extensive investigation, a Grand Jury found that "the child
protection system was 'out of control, with few checks and little
balance, '"1 29 and that the system was more invested in "proving
allegations than in finding the truth .... 'in too many cases, Child
Protective Services [could not] distinguish real abuse from fabrication,
' 30
,
abuse from neglect, and neglect from poverty or cultural differences."
The Grand Jury estimated that sixty percent of the families subject to31
agency intervention were innocent of the abuse or neglect alleged.
While no similar claim is made with respect to the practice of
Connecticut's Department of Children and Families, it is nonetheless
See Jordan, 15 F.3d at 347.
See CoNN. GEN. STAT. § 46b-129(b) (1999).
123. See Jordan, 15 F.3d at 347.
124. See Compitello, supra note 87, at 149-50.
125. See id. at 150.
126. See Peggy Cooper Davis & Guatarn Barua, Custodial Choices for Children at
Risk: Bias, Sequentiality, and the Law, 2 U. Ci. L. SCH. ROUNDTABLE 139, 148 (1995).
127. See Stone, supra note 114, at A9.
128. See Davis & Barua, supra note 126, at 142-43.
129. Compitello, supra note 87, at 149.
130. Id.
131. See id.
at 150.
121.
122.
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[Vol. 19:125
worth noting that the potential for inaccurate or biased fact finding and
risk assessment does exist.
In considering the possibility of error, it is also worth noting that in
recent years, in response to the tragic deaths of children from abuse,
DCF has employed more aggressive risk assessment measures and has
consequently requested the removal of increasing numbers of
children. 132 During the 1996-1997 fiscal year, over 2800 children were
133
removed from their homes under orders of temporary custody.
Connecticut's removal rate is the fifth highest in the nation and is nearly
twice the national average.1 4 While these statistics may simply reflect
the state's effective response to an epidemic of child abuse, they may
also represent a zealous child protection effort consequent to which may
be an increased risk of wrongful removal.
An additional factor influencing the correctness of a removal
decision involves the bias which may influence the judge's decision to
sign the order of temporary custody. Researchers have observed that
judicial decisions to issue temporary custody orders are likely to err on
the side of removal."' This tendency may be explained by the decisionmaker's fear of the usually conspicuous adverse consequences of not
removing the child. 136 The fear develops, in part, as the result of
negative private and public responses related to erroneous decisions not
to intervene. 3 7 The harmful effects of wrongfully removing a child, on
the other hand, are rarely presented to the decision-maker or to the
public at large. 38 Scholars claim that in obviously ambiguous situations,
39
this dynamic of influence skews decisions in favor of removal.1
In summary, the risk of error in the determination to remove a child
from her home, to deprive parents and child of their fundamental
interest in family integrity, and to interrupt the child's primary
attachment to her parents, may be evaluated in terms of the factors
described above. On the side of procedural protection against error is
the practice of judicial review of the request for temporary custody with
132. See NATIONAL CHILD WELFARE RESOURCE CTR., supra note 15, at 38.
133. See Connecticut Judicial Branch, Juvenile Court Operations
(unpublished report).
134. See Child Safety in the Home, supra note 4, at 3.
135. See Davis & Barua, supra note 126, at 152.
136. See id.
137. See id.
138. See id.
139. See Davis & Barua, supra note 126, at 151.
(1998)
2000] FAMILIES, CHILD REMOVAL HEARINGS, AND DUE PROCESS
14"
Against this safeguard are the
its accompanying affidavits. 40
possibilities of social worker or agency bias or abuse of power,' 4 ' of a
good faith but over-zealous agency removal policy, 42 and of bias in
judicial decision making. 4 1
On balance, and in light of the alleged
threat to the child's safety, these risks may be acceptable at the time that
the order of temporary custody is issued. They may not be acceptable,
however, if the time required to correct a wrongful decision creates for
the child and the family another layer of harm and hardship.
b. Decision-Making and Risk of Error
The process inherent in post-removal judicial decision making may
exacerbate the effect of an erroneous removal. Davis and Barua argue
that the initial decision to remove a child is likely to affect the nature of
subsequent decisions.' 44 In general, the theory of the "sequentiality
effect" of decision-making suggests that later decisions tend to go in the
same direction as earlier decisions. 4 1 When, for example, an error is
made in the original decision to remove a child, that error is likely to be
not only maintained, but also exaggerated; 146 the error tends not to be
corrected and reversed. 47 This phenomenon of sequential decision
making is partly explained by a "status quo bias" which influences all
decision-making. 48 In general, research indicates that those who make
decisions are apt to avoid any action which changes a circumstance (as
49
contrasted to change which occurs through "passive acquiescence").'
Greater risk is perceived to be associated with actively changing the
status quo. 50 In cases where temporary custody orders are issued, then,
a judge, who may have erred on the side of intervention and removal
because of a fear of adverse public reaction,' may further exacerbate a
wrong decision if he or she is influenced by this status quo bias. The
longer the child is out of home, the more settled he or she appears to be
140.
141.
142.
143.
144.
145.
146.
147.
148.
149.
150.
151.
See supra notes 114-15 and accompanying text.
See supra notes 116-22 and accompanying text.
See Compitello, supra note 87, at 150.
See supra notes 123-28 and accompanying text.
See Davis & Barua, supra note 126, at 146.
See id.
See id.
See id.
See Davis & Barua, supra note 126, at 146.
See id. at 149.
See id.
See supra notes 123-28 and accompanying text.
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[Vol. 19:125
in foster care, the easier it will be to appreciate the situation not as an
emergency placement, but as the status quo. "2 Research indicates that
judges will tend to avoid the risk and responsibility associated with
returning the child to the parents' custody.'53 Instead, judges5 are
4 more
placement.
safe
a
be
to
appears
what
in
child
the
leave
to
likely
2. The Usefulness ofAlternate Procedures
The value associated with an earlier hearing presents benefits in
terms of degree rather than kind. 55 Once the child has been removed,
the issue becomes one of preventing further descent down the slippery
slope of increased harm and hardship. A more timely hearing will not
eliminate the error, but it can reduce the deleterious effects of an
erroneous decision. 51 6 The sooner the error is corrected, the sooner the
family is reunited, and the sooner parents and children will go about the
business of being a family.
C. The State's Interest
The final factor of both the Mathews and FDIC tests focuses on the
state's interest, including the fiscal and administrative burdens
associated with substitute procedural requirements 51 and the state's
justification for delay as it does or does not relate to the state's
interest.5 1 It is beyond question that the state has a compelling parens
patriae interest in the safety and welfare of its children. 59 This interest,
courts have held, is of such significance that in instances where the
child's safety and welfare appear to be in jeopardy, the state may6
supersede parents' authority to raise and care for their children.'
Connecticut's public policy includes "provid[ing] a temporary or
permanent nurturing and safe environment for children when
necessary.'' However, like parent and child, the state also has an
152. See Davis & Barua, supra note 126, at 149.
153. See id.
154. See id.
155. See Jordan v. Jackson, 15 F.3d 333, 345 (4th Cir. 1994).
156. See id.
157. See Mathews v. Eldridge, 424 U.S. 319, 334 (1976).
158. See FDIC v. Mallen, 486 U.S. 230, 242 (1988).
159. See, e.g., Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 27 (1981); see also
Santosky v. Kramer, 455 U.S. 745 (1982); Parham v. J.R., 422 U.S. 584, 603 (1979).
160. See Prince v. Massachusetts, 321 U.S. 158, 168 (1944).
161. CONN. GEN. STAT.§ 17-38a(a) (1999).
2000] FAMILIES, CHILD REMOVAL HEARINGS, AND DUE PROCESS
145
interest in family integrity. Indeed, "the welfare of the state depends in
large part upon the strength of the family";' 62 "[t]he parens patriae
interest favors preservation, not severance, of natural familial bonds.' 63
In Connecticut, it is the state's specifically articulated public policy "to
strengthen the family and to make the home safe for children by
enhancing the parental capacity for good child care."'4
Prior to November 1997, a state's efforts to protect children and
strengthen families were guided by the federal Adoption Assistance and
Child Welfare Act of 1980'65 and its Connecticut corollary. This
legislative initiative emphasized the preservation of the integrity of the
family unit. 66 With the passage of Public Law 105-89 in November
1997, the Adoption and Safe Families Act of 1997 (ASFA) 67 redirected
the focus of state efforts to serve children and families. The new federal
legislation and Connecticut's enabling statutes now require that the state
place the child's health and safety as the paramount concern in its
efforts to preserve family integrity, or where children have been
removed, to reunify families.'9 While the new law continues to stress
the importance of family preservation, its emphasis on child safety shifts
the balance in favor of the child's interest in being safe over his or her
interest in family integrity.
Section 46b-129, the law at issue here, is designed to protect the
state's interest in the child's safety and in the family's preservation.
Until the statute's recent amendment,
69
parents were entitled to a
hearing within ten days after the child's removal. 70 The court in many
instances was unable to satisfy this statutory provision. 7 ' As noted
above, the court's inability to accommodate within ten days a parent's
request to contest the removal of her child gave rise to the suit and the
subsequent appeals in Pamela B. 72 While the principal issue on appeal
to Connecticut's Supreme Court dealt with the justiciability of the
mother's claim, the court's comments on the issue of the state's
justification of the delay are instructive. As detailed in the Pamela B.
162.
163.
164.
165.
166.
167.
168.
169.
170.
171.
172.
Jordan v. Jackson, 15 F.3d 333, 346 (4th Cir. 1994).
Santosky, 455 U.S. at 766-67.
See CONN. GEN. STAT. § 17-38a(a) (1999).
Pub. L. No. 96-272, 94 Stat. 500 (1980).
See id.; see also Levesque, supra note 2, at 14.
See Pub. L. No, 105-89, 111 Stat. 2115 (1997).
See id.; see also CONN. GEN. STAT. § 17a-15(a) (1999).
See id. § 46b-129.
See id. § 46b-129 (1997).
See NATIONAL CHILD WELFARE RESOURCE CTR., supra note 15, at 38-39.
See Pamela B. v. Ment, 244 Conn. 296, 303-04, 709 A.2d 1089, 1095 (1998).
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[Vol. 19:125
decision, the state maintained that the very number of petitions brought
before the juvenile court stretched the court's resources to the point that
it was often impossible to schedule contested temporary custody
hearings in a timely way.173 Further, the state maintained, the chief court
administrator lacked the authority to order juvenile trial judges to "alter
court procedures to streamline the time involved in juvenile matters."'74
In substance, the state maintained that delay in offering a hearing was
justified by the juvenile courts' administrative inability to meet the
demands of its high volume of cases. In Pamela B., the state saw its
administrative burden as outweighing the mother's interest in a timely
due process removal hearing.
In the instance of the new twenty-day hearing statute, the
legislature has not specifically provided any justification for increasing
the time between removal and meaningful hearing from ten to twenty
days. There appears in the record no argument that the state's interest in
children's safety requires the additional time. Neither is there evidence
that the legislature was convinced that parents needed the additional
time to effectively prepare for a contested hearing. Given that the statute
was amended on the heels of the Pamela B. decision,"' it would appear
that a likely reason for extending the initial hearing period may have
related to the juvenile court's continued struggle to process cases in a
timely way. The state's justification for the delay in providing a due
process removal hearing may indeed stem from administrative and
staffing constraints.
In the Mathews test, the fiscal and administrative burdens
associated with substitute procedural requirements must be examined.' 76
The central issue in the application of the balancing test rests on this
consideration: what would it cost the state, i.e., the judicial branch, to
provide opportunity for removal hearings in fewer than twenty days
after the issuance of the order of temporary custody. While information
about the cost of providing more judge time, greater administrative
support, and better juvenile court facilities is not available, the
comments of the Pamela B. court are again worth considering. In
Pamela B., both the majority opinion and the concurrence of Justice
Berdon addressed the issue of administrative costs. The majority
173.
174.
175.
enacted
176.
See id. at 322, 709 A.2d at 1104.
Id. at 312, 709 A.2d at 1099.
Pamela B. was decided on March 31, 1998. Revisions to section 46b-129 were
in May 1998.
See Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
2000] FAMILIES, CHILD REMOVAL HEARINGS, AND DUE PROCESS
147
maintained that the allocation of judicial resources had to be considered
within the context of the across the board demands placed on the
judicial branch.
In applying a "hydraulic" paradigm, the court
suggested that the challenge for the Chief Court Administrator lay in
fairly distributing resources given that "pushing down on or drawing up
from one part of [available resources] may affect other parts.' 177 For the
Pamela B. majority, whether "systemic violation[s] of parents"
constitutional rights could be remedied without undermining the
constitutional rights of other court involved citizens was determinant of
the court's liability and was more properly taken up in a full evidentiary
(trial court) hearing.' The case was remanded to consider whether the
issue of the Chief Court7 9Administrator's allocation of resources was
"constitutionally proper.',
Justice Berdon, who concurred with the result reached by the
majority with respect to the justiciability of the plaintiff's claim, went
on to opine that the plaintiff may be entitled to summary judgment with
respect to her claim of constitutional violation." In taking the majority
to task, the concurrence argued that the hydraulic approach of the
majority was inadequate in the face of the fundamental interests at
stake.
Any suggestion that this unusual theory of constitutional "hydraulics" can
dissipate the fundamental federal constitutional rights of the plaintiff... rights that do not depend upon the state's resources, [the Chief Court
Administrator's] discretion or any other such consideration-is also
unavailing. The majority cites to no law, and I doubt that any could be found,
that would suggest that the violation of the federal procedural and substantive
due process rights of the plaintiff can be trumped if the state cannot remedy
these violations of individual constitutional rights without, at the same time,
causing other constitutional violations to occur.
The facts and opinions presented in the Pamela B. decision not
only support the suggestion that the reason for statutorily expanding the
hearing time frame is related to fiscal and administrative issues, but also
suggest that an inadequacy of resources may not be sufficient
justification for the denial of due process."82 While Mathews requires
177.
178.
179.
180.
181.
182.
Pamela B., 244 Conn. at 317, 709 A.2d at 1101.
Id. at 320, 709 A.2d at 1102.
Id.at 331, 318, 709 A.2d at 1102, 1108.
See id. at 336, 709 A.2d at
O110.
Pamela B., 244 Conn. at 343, 709 A. 2d at 1113 (Berdon, J., concurring).
See id. at 315, 709 A.2d at 1100.
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[Vol. 19:125
some consideration of the additional costs to the state that earlier
hearings would entail,183 the Pamela B. majority was unwilling to hold
that administrative costs did, in fact, justify the extent of delay
experienced by the plaintiff mother.' 84 Instead,
the court remanded the
85
case to the trial court for that determination.
V. RELATED INTERESTS AND PROCEDURAL DUE PROCESS
The due process implications of section 46b-129 may also be
assessed and understood in terms of the procedural due process
requirements associated with the threatened deprivation of other
constitutionally protected interests. While courts have cautioned that a
consideration of different fundamental interests necessitates different
approaches to the issue of due process protections,16 language in family
integrity cases often alludes to other types of protected interests.
Because of the unique nature of parents' and children's interests at stake
in a temporary custody action, such comparison can, at a minimum,
provide some frame of reference with respect to the significance of the
deprivation at issue.
A. Attachment of Property
The U.S. Supreme Court has held that the rights of parents to
family integrity are far more precious than property rights. 18 7 Yet,
property
been afforded specific and considerable procedural
duerights
roceshave •188
due process protection.
In Doehr, the Supreme Court held that a
Connecticut law which allowed for the pre-judgment attachment of
property 189 violated the property owner's constitutional right to due
process.
In that case, an individual applied to the court for an
attachment of a lien on the property owner's home. The application was
accompanied by an affidavit in which the individual declared that the
attachment was necessary for him to recover expenditures for medical
care he received subsequent to being assaulted by the property owner.'90
183.
184.
185.
186.
187.
188.
189.
190.
See Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
See Pamela B., 244 Conn. at 315, 709 A.2d at 1100.
See id. at 331, 709 A. 2d at 1108.
See, e.g., Boddie v. Connecticut, 401 U.S. 371, 378 (1971).
See May v. Anderson, 345 U.S. 528, 533 (1953).
See Connecticut v. Doehr, 501 U.S. 1 (1991).
See id. at 24.
See id. at 5-6.
2000] FAMILIES, CHILD REMOVAL HEARINGS, AND DUE PROCESS
149
A superior court judge reviewed the application and issued an ex parte
order permitting the attachment.' g The property owner received notice
of the attachment and his right to a post-attachment hearing only after
the attachment had occurred.'9 The property owner brought suit; the
district court upheld the statute.' 93 The court of appeals reversed the
decision on the grounds that the ex parte order was granted without a
showing of "extraordinary circumstances" and in spite of the risk of
error associated with pre-hearing attachment.'9
The Supreme Court affirmed the court of appeals; the Court
applied the Mathews test in making its determination.9 In considering
the first factor, the nature of the private interest involved, the Court
noted that clouded title "impairs the ability to... alienate the property;
taints any credit rating; reduces the chance of obtaining a home equity
loan... , and... [might] place an existing mortgage in technical
default."'"' The property interests were significant enough to deserve
protection, 97 even though the deprivation of those interests was not
The second factor analyzed by the Court
complete or permanent.'9
involved the risk of error associated with the pre-hearing attachment.' 99
The Court noted that significant risk of error existed insofar as the
alleged factual basis for the issuing of the ex parte order was subject to
dispute. 200 Finally, in considering the nature of the government interest
in the attachment procedure, the Court held that the state's interest was
not sufficient to warrant the risk of the wrongful attachment of
property. 2°' Further, the state would not be appreciably burdened by
offering, as a substitute, a pre-attachment hearing. 2°2 In balancing the
three factors, the Supreme Court found that the private interest, absent a
significant countervailing state interest, deserved the procedural
protection afforded by the convening of a hearing prior to the
attachment.203 The Court concluded that the "potential for unwarranted"
191.
192.
193.
194.
195.
196.
197.
198.
199.
200.
201.
202.
203.
See id. at 7.
See Doehr, 501 U.S. at 7.
See id.
See id. at 7-8.
See id. at 8.
Doehr, 501 U.S. at 11.
See id. at 12.
See id.
See id.
See Doehr, 501 U.S. at 13.
See id. at 16.
See id.
See id. at 16.
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[Vol. 19:125
deprivation was too great to be addressed by pre-hearing attachment.2 4
In terms of the consideration of section 46b-129, it is useful to keep in
mind that in Doehr, the Court found objectionable even the temporary
deprivation of a protected interest. 25 The Court also concluded that
even in situations which involved the ex parte, pre-order review of
documents, the fact-sensitive nature of the dispute necessitated special
attention to protect against the possibility of error. 9
B. Detention of Youth
For children to be forcibly removed from their parental home
pursuant to an order of temporary custody represents a real infringement
on their interest in family integrity, albeit in the cause of the child's
competing interest in remaining safe. This deprivation, in some ways,
resembles the pre-adjudication detention of a youth charged with
delinquent acts. While the removed child is certainly without fault and
the detained youth may or may not be, both youngsters may be placed
out of their parents' custody against their and their parents' will. One
court has held that placement in foster care is unlike detention in that the
youth in detention is subject to greater restraints on his liberty. °7 On the
other hand, in another case, the Supreme Court has commented that
pretrial detention "need not be considered punitive., 20 ' For the child in
either foster care or detention, though, the removal from the home
represents the loss of parents, siblings, school, friends, familiar
environments, and the security that the familiar represents. 209 Because
of the nature of these deprivations, whether related to alleged
delinquency or abuse and neglect, children's interests in family integrity
are similarly affected.
In 1984, the Supreme Court reversed the then existing trend to
prohibit the pretrial detention of a youth "without a prompt
determination of probable cause. '21 ° In Schall v. Martin, the Court held
that youth who posed a serious risk of committing a crime could be
detained because the state's (New York's) procedural protections were
204.
205.
206.
207.
208.
Doehr, 501 U.S. at 14.
See id. at 12.
See id. at 14.
See Jordan v. Jackson, 15 F.3d 333, 354 (4th Cir. 1994).
Schall v. Martin, 467 U.S. 253, 272 (1984).
209.
See RESOURCE GUIDELINES, supra note 15, at 30.
210.
ROBERT M. REGOLI & JOHN D. HEWITT, DELINQUENCY IN SOCIETY: A CHILDCENTERED APPROACH 393 (2d ed. 1994).
2000] FAMILIES, CHILD REMOVAL HEARINGS, AND DUE PROCESS
151
sufficient. 21' Under the provisions of the New York statute at issue, after
his arrest, the juvenile would appear at an initial hearing on the next day
the court was in session.2 2 If the youth denied the charges against him
and probable cause for detention was found, the juvenile was entitled to
a probable cause hearing no more than three days after the initial
hearing or four days after a delinquency petition was filed. 213 Further,
by statute, juveniles charged with a limited number of specific felonies
were entitled to a fact-finding hearing within fourteen days of the initial
hearing. Juveniles charged with less significant crimes were entitled to
a fact-finding hearing within seventy-two hours.1 4 The Court held that
the statute presented no due process violation because (1) the New York
law provided some procedural protections (the initial and three day
probable cause hearing), (2) the time between initial and fact-finding
hearing was fourteen or three days depending on the seriousness of the
charge, and (3) those juveniles held posed a "serious risk" of reoffending.1 5 Where there is a prediction of "future criminal conduct,"
the Court held, it is not improper for a juvenile to wait for three days for
a probable cause hearing before a judge and as long as fourteen days for
a full fact-finding proceeding.2 6 The Schall dissent maintained that the
procedural requirements of New York's detention statute were both
ineffective in
inequitable and prone to arbitrary administration, thus
2' 7
safeguarding the child's constitutional liberty interest.
Section 46b-133(d) of the Connecticut General Statutes requires
that after a juvenile is arrested, he or she "may be detained pending a
hearing... on the next business day following his arrest."2 '8 The child
may be detained further in cases where the judge finds probable cause to
believe that the child committed the crimes alleged, and where the child
presents one of five risks relating to the welfare of the child or
community or the child's likelihood of not reappearing before the court
as required.21 9
211. See Schall, 467 U.S. at 281.
212. See id. at 258 n.5.
213. See id. at 270.
214. See id.
215. Schall, 467 U.S. at 278-79.
216. Id.
217. See id. at 308-09; see also Irene Rosenberg, Schall v. Martin: A Child Is a
Child Is a Child, 12 AM. J. CRam. L. 253, 278 (1984). The author asserts that "[w]hat
Schall... does is to reinforce unbridled state authority at the expense of both children
and their parents." Id.
218. CoNN. GEN. STAT. § 46b-133(d) (1999).
219. See id.
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[Vol. 19:125
C. Commitment of Children
The U.S. Supreme Court has also held that a child is due
procedural protection when either his parents or the state seeks to
commit the child for mental health treatment against the child's
wishes.220 In Parhamv. J.R., a class of children brought suit against the
State of Georgia alleging that a state law violated the Due Process
Clause of the Fourteenth Amendment by not providing for a
commitment hearing. 22' The district court found that the law at issue
was unconstitutional.
In reviewing the district court's decision, the
Supreme Court held that children were not entitled to a formal,
adversarial hearing on the issue of the need for commitment. 223 The
Court reasoned, however, that the risk of error in a parent's or the state's
decision to commit a child was "sufficiently great" that it necessitated
an inquiry on the issue. 224 The Court held that this inquiry could be
undertaken by a "neutral factfinder" who was trained to evaluate the
child's mental and emotional condition. 225 In concluding that this fact
finder would more appropriately be a physician than a legally trained
226 the Court emphasized that
judicial officer,
the physician (psychiatrist)
227
be neutral.
The Parham Court also found acceptable a hearing that was
informal in nature. 22 The court approved of the informality for three
reasons: (1) the issues at stake were essentially medical in nature and
established procedures for conducting such a medical assessment
already existed, (2) an adversarial proceeding might be too intrusive into
the parent-child relationship, and (3) adversarial proceedings might
further exacerbate the child's already fragile mental state.229 In short,
the Court concluded that the process of law due to the committed child
was satisfied as long as an informal proceeding was conducted by a
neutral factfinder.23 °
220.
221.
222.
223.
224.
225.
226.
227.
228.
229.
230.
See
See
See
See
See
See
See
See
See
See
See
Parham v. J.R., 442 U.S. 584 (1979).
id. at 588.
id.
id. at 620.
Parham,442 U.S. at 606.
id. at 606-08.
id. at 611-12.
id.
Parham,442 U.S. at 610.
id. at 609-10.
id. at 610.
2000] FAMILIES, CHILD REMOVAL HEARINGS, AND DUE PROCESS
153
Section 17a-78 of the Connecticut General Statutes specifies the
provisions for the emergency commitment of a child for involuntary
hospitalization for the treatment of a mental disorder. 31 Section 17a-78
allows the child's commitment on the basis of a physician's certificate
for not more than fifteen days.232 In emergency situations, no precommitment hearing is required. 33 The child, however, must be
examined by a psychiatrist within twenty-four hours of the child's
admission.3
If the physician determines that the child is not in need of
23
emergency hospitalization, the child must be immediately discharged.
If the child's hospitalization is deemed necessary, and if the child or her
representative requests a hearing, that hearing must be convened by a
court of probate within seventy-two hours.236 At this hearing, the child
has the right to be present, to be represented by counsel, and to cross-
examine witnesses.237
In keeping with the due process requirements
articulated by the Supreme Court in Parham, Connecticut's statutory
scheme provides an informed but informal review of the case within
twenty-four hours and a full hearing, if requested, within seventy-two
hours of the child's admission to the hospital.
VI. STATUTES AND STANDARDS
While the heart of any due process analysis of section 46b-129
must involve the application of the Mathews and FDIC balancing
tests,238 and might extend to a consideration of due process requirements
with respect to similar constitutional interests, 39 two further areas of
inquiry are particularly helpful. A review of time frames for removal
hearings as they are statutorily mandated in other states provides some
sense of whether section 46b-129 "'offends some principle of justice as
rooted in the traditions and conscience' of the American people.2 °
Similarly, reference to the standards promulgated by the National
Council of Juvenile and Family Court Judges provides a legitimate
231.
232.
233.
234.
235.
236.
237.
238.
239.
240.
U.S. 97,
See CoNN. GEN. STAT. § 17a-78 (1999).
See id. § 17a-78(a).
See id.
See id. § 17a-78(b).
See CoNN. GEN. STAT. § 17a-78(b) (1999).
See id. § 17a-78(d).
See id.
See supra notes 64-176 and accompanying text.
See supra notes 175-218 and accompanying text.
Schall v. Martin, 467 U.S. 253, 268 (quoting Snyder v. Massachusetts, 291
105 (1934)).
Q [Vol. 19:125
QLR
benchmark against which Connecticut's statutory requirement can be
evaluated. Both statutory and National Council standards provide the
broader context of American values which will shape any assessment of
section 46b-129's constitutional validity. 4'
A. State Statutes
Temporary custody hearings, sometimes known as emergency,
shelter care or preliminary protective hearings,
242
are generally construed
as the judicial proceeding at which the court considers whether
sufficient cause exists for the child's involuntary removal from the
home because of alleged abuse or neglect.243 All states allow for
hearings to be convened after the child's actual removal.24 However,
states are not uniform in specifying mandatory times in relation to a
trigger event, either actual removal or issuance of an order of temporary
custody, and a few states provide for no specific time frame. 24 5 By and
large, there is considerable variation in the times in which temporary
custody hearings must be held.2 46 In the District of Columbia and the
forty-seven states that establish time frames for hearings, eight states
and the Distiict of Columbia require a hearing within twenty-four
hours, 2' ten states within forty-eight hours, 248 eighteen states within
seventy-two hours, 249 one state within ninety-six hours, 250 two states
within five days,251 two states within seven days,252 and four states within
241.
See generally Boddie v. Connecticut, 401 U.S. 371, 380 (1971).
The Court
noted that "the State owes to each individual that process which, in light of the values of
a free society, can be characterized as due." Id.
242. See Shirley A. Dobbin et al., Child Abuse and Neglect: A National Summary of
State Statutes, 48 Juv. & FAM. CT. J. 41, 45 (1997).
243. See id.
244. See id.
245. See id.
246.
See Dobbin et al., supra note 242, at 45.
247. See id.; see also FLA. STAT. ch. 30.401 (1997); MICH. COMP. LAWS ANN. §
712A.13a(2) (West 1998).
248. See Dobbin et al., supra note 242, at 45; see also IDAHO CODE § 16.1613(b)
(1997); KAN. STAT. ANN. § 38-1542 (1997); VT. STAT. ANN. Tit. 33, § 5515 (1997).
249.
See Dobbin et al., supra note 242, at 45; see also COLO. REv.
STAT. §
19-3-
403(2) (1997); MASS. GEN. LAWS ch. 119, § 24 (1997); N.Y. FAM. CT. ACT § 1035
(1997); UTAH CODE ANN. § 78-3a-306 (1998).
250. See Dobbin et al., supra note 242, at 45; see also N.D. CENT. CODE § 27-20-17
(1997).
251. See Dobbin et al., supra note 242, at 45; see also ARK. CODE ANN. § 927315(a) (Michie 1997).
20001 FAMILIES, CHILD REMOVAL HEARINGS, AND DUE PROCESS
155
ten days.253 Connecticut now joins Montana as the two states that permit
up to twenty days between removal and hearing.f4 States that track the
time from the child's removal from the home require, on average, that a
hearing be convened within three days."5
B. National Standards
The National Council of Juvenile & Family Court Judges'
Resource Guidelines adds further depth to the background against which
25 6
Connecticut's temporary custody hearing statute can be evaluated.
The Council recommends that when at all possible, the removal hearing
precede the actual removal.2 7 When a pre-removal hearing is not
possible because of an emergency situation of perceived imminent risk,
the Council suggests that the hearing occur within seventy-two hours of
the removal.5 In commenting on the necessity of a timely due process
hearing, the Council notes that this "hearing is an emergency matter.
The family is often in crisis." 259
VII. SYNTHESIS: SECTION 46b-129 AND SPECIFIC TESTS, CASE LAW,
AND PRACTICE
It is useful, at this point, to draw some conclusions about where
Connecticut's law providing for meaningful due process hearings stands
within the broad frame of reference thus far set out. Considered in this
discussion is section 46b-129 in light of the Mathews and FDIC
balancing tests, due process requirements and other constitutionally
protected interests, the laws of other states, and the recommendations of
experts in child welfare law.
252. See Dobbin et al., supra note 242, at 45; see also R.I. GEN. LAWS § 40-11-7.1
(1997).
253. See Dobbin et al.,
supra note 242, at 45; see also ME. REv. STAT. ANN. tit. 22,
§ 4034 (West 1997); N.H. REV. STAT. ANN. § 169-C:6a (III) (1997); W. VA. CODE § 496-3(a) (1997).
254. See Dobbin et al., supra note 242, at 45; see also MON. CODE ANN. § 41-3-403
(1997).
255. See Dobbin et al., supra note 242, at 45.
256. See RESOURCE GUIDELINES, supra note 15, at 29-44.
257. See id. at 30.
258. See id.
259. Id.
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[Vol. 19:125
A. The Balancing Tests
While the significance of parents' rights to family integrity appears
to pale when set beside the child's sometimes conflicting right to grow
up in safety, it is always important to be mindful of just what is
happening when the state intervenes in the life of a family. Few parents,
whether fit or not, can imagine anything more nightmarish than the
removal of their children. Often with no information about where the
children will be, and without any realistic assurance that the children
will be safe, parents are deprived of that which most parents value most.
The child, from infant to adolescent, may be removed from all that is
familiar and placed with strange people in a strange home that may or
may not meet that child's needs and may or may not be as safe as the
home the child left.260 The removal of the child from the familial home,
even when completely proper, will inflict significant psychological
distress and will have, perhaps, a lasting effect. 26' Temporary removals
are not benign; they do have harmful effects.262 Even assuming that, in
most cases, the state's temporary placement of a child in foster care is
completely appropriate in terms of the state's parens patriae interest,
the removal always involves some element of risk to the child.263 While
most foster homes are safe, it is also true that some foster homes can be
terrible places, worse even than the home from which a child is
removed. 264 Further, removal typically causes a degree of short-term
distress to the child; in some cases, it may also produce long-lasting
psychological damage. 265 This certainty of some harm and potential for
great harm are always present and are present whether the child is
removed for seventy-two hours or twenty days. The issue is really how
long Connecticut will allow the harm and hardship to continue in cases
where children never should have been removed in the first place, and
why the state chooses not to assess the possibility of error and declines
an opportunity to correct any error for twenty days when the most astute
260. See TOTH, supra note 86, at 18.
261. See GOLDSTEIN ET AL., supra note 99, at 24.
262. See Linda A. Katz, An Overview of Current ClinicalIssues in Separation and
Placement,4 CHILD & ADOLESCENT Soc. WORK, Fall/Winter 1987, at 61, 64.
263. See TOTH, supra note 86, at 24.
264. See id.
265. See Pamela B. v. Ment, 244 Conn. 296, 314, 709 A.2d 1089, 1100 (1998)
(quoting GOLDSTEIN ET AL., supra note 99, at 41).
2000] FAMILIES, CHILD REMOVAL HEARINGS, AND DUE PROCESS
157
child welfare minds advocate this very thing happening within seventytwo hours.266
Based on the record presented in Pamela B. 267 and the practice
documented in the Court Improvement Project Report,268 the state's
primary justification for choosing not to remediate possible injustices or
errors as soon as recommended stems from the court's difficulty in
providing earlier hearings. In the scheme provided by section 46b-129,
the court must accommodate the burden of conducting not one, but two
hearings. 269 More work is created by the very effort to avoid a
commitment to more timely hearings. And as noted by the National
Council of Juvenile and Family Court Judges, additional administrative
savings in terms of the life of the case could be realized by earlier
attention from the court: "[w]hen preliminary protective hearings are
thorough and timely, some cases can be resolved with no need for
h current
urn
run, the
subsequent court hearings and reviews. ,,270 In the long rn
statutory requirement may truly be more burdensome to the court than
would be the offering of timely removal hearings.
When reduced to its most essential elements, a Mathews and FDIC
balancing effort as applied to section 46b-129 calls for the questionable
administrative savings realized from delayed hearings to be weighed
against the benefit of mitigating the certain and potential harm
associated with a child's removal from his or her parents. On balance, it
is hard to imagine that the due process protection of interests as
significant as those involved here should give way to court practices of
uncertain efficacy. Unless there exists some unarticulated burden on the
state associated with the conducting of temporary custody hearings,
section 46b-129 may indeed fail to pass the Mathews and FDIC
balancing tests. As the Stanley court observed, "the State registers no
gain towards its declared goals when it separates children from the
custody of fit parents., 271 To delay a preliminary determination of
immediate risk to a child undermines not only the parents' and child's
interests, but also the interests of the state itself.
One further observation with respect to delayed hearings is worth
considering. Because the contention in nearly all child removal cases
266.
267.
268.
269.
270.
271.
See RESOURCE GUIDELINES, supra note 15, at 30.
See Pamela B., 244 Conn. at 322, 709 A.2d at 1104.
See NATIONAL CHILD WELFARE RESOURCE CNTR., supra note 15, at 38.
See CONN. GEN. STAT.
§ 46b-129 (1999).
supra note 15, at 31.
Stanley v. Illinois, 405 U.S. 645, 652 (1972).
RESOURCE GUIDELINES,
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[Vol. 19:125
rest
actul
on disputes,
"
272 parties to the action, whether agency, parent,
rests on
factual
or child, may benefit from additional time to investigate or to prepare
their case. In representing the interests of parents, for example, an
attorney may find it necessary to research facts, to seek out witnesses, or
to arrange for expert testimony. These tasks may require more than the
initial ten days available.
For the child's attorney, necessary
investigation may involve contact with medical, psychological, and
school staff. The agency might undertake similar inquiries. However,
as emphasized by the National Council, the ex parte removal of a child
grows out of an emergency situation.27 All who have a part in legally
addressing the removal must act with the efficiency required by the
emergency. The state agency, with its superior resources, would be
least prejudiced by an earlier hearing. For parents and child, the need
for additional preparation time might be related to more complex
disputes. To require all parents and children who contest removals to
wait for a hearing because some parents and children may require
additional time may not be reasonable or justified. In terms of the
balancing of interests, except in extraordinary situations which might be
otherwise addressed, no party is especially disadvantaged by early,
timely hearings.
B. PropertyLaw
Requirements of due process as they relate to deprivations
experienced by adults and children in other situations are not necessarily
determinative of the constitutionality of section 46b-129, but they do
provide an optic through which the Connecticut law can be examined.
As articulated by the Supreme Court, parents' rights to family integrity
"are more precious than property rights,, 274 "superior to those [interests]
which 'derive merely from shifting economic arrangements.' 27 Yet in
Doehr, for example, the Court held that because of the risk associated
with factual disputes, property could not be encumbered, even
temporarily, without a pre-attachment hearing.
The Court noted,
additionally, that the state's administrative burden associated with
272. See supranotes 265-68 and accompanying text.
273. See RESOURCE GUIDELINES, supra note 15, at 30.
274. See May v. Anderson, 345 U.S. 528, 533 (1953).
275. Stanley, 405 U.S. at 651 (quoting Kovacs v. Cooper, 336 U.S. 77, 95 (1949)
(Frankfurter, J., concurring)).
276. See Connecticut v. Doehr, 501 U.S. 1, 18 (1991); see also supra notes 177-91
and accompanying text.
2000] FAMILIES, CHILD REMOVAL HEARINGS, AND DUE PROCESS
159
convening a hearing was the same regardless of when the hearing was
conducted.277
In applying the logic of the Doehr decision to an analysis of
section 46b-129, it could be said that the private interests at stake in the
removal of a child are vastly more significant.278 Parents' interests,
however weighty, are counterbalanced and superseded by the child's
interest in safety and the state's parens patriae interest in the child's
welfare.
Whereas, in Doehr, the Court found no emergency
circumstances warranting a pre-hearing order,279 in child removal cases,
real emergencies are recognized. Child removal cases may truly not
allow for a pre-removal hearing, and the absence of pre-removal
hearings is not deemed unacceptable.28 °
To this point, the difference between providing due process
protection to property owners in the first case and to parents whose
children have been removed, in the second, is understandable: one
situation presents no exigent circumstances, while the other does. What
can be extracted from the Doehr decision, though, are the Court's
comments about, first, the factual nature of the determination, and
second, the state's administrative burden. The Doehr court noted that
precisely because the action related to what could be a factual dispute,
due process safeguards needed to be carefully crafted and faithfully
observed.28 ' Child removal cases, like the situation in Doehr, often
involve factual disputes. And while the Doehr issue related to preattachment versus post-attachment hearings, and the section 46b-129
issue is related to delay in post-removal hearings, the Doehr court's
comments about the risk of error embodied in the fact-specific nature of
the decision are equally applicable. Where interests are deprived based
on disputed facts, due process protections must be especially enforced.2 2
Where children are involuntarily removed from their parents' custody
and, perhaps, in spite of their parents' claims of error, the opportunity
for a hearing is especially important. The significance of this hearing, it
could be argued, requires the immediate rather than the delayed
scheduling of due process hearings.
The Doehr court's statement about the administrative burden
associated with the timing of a hearing is also worth noting. The
277.
278.
279.
280.
281.
282.
See id. at 15.
See May, 345 U.S. at 533.
See Doehr, 501 U.S. at 18.
See Duchesne v. Sugarman, 566 F.2d 817, 826 (2d Cir. 1977).
See Doehr, 501 U.S. at 8.
See id.
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[Vol. 19:125
Supreme Court concluded that the state's burden was the same whether
the hearing was offered before or after the property attachment.283 In
child removal proceedings, then, the logical question that must be
answered in assessing the administrative burden on the state in
mandating removal hearings at the three, ten, or twenty day mark relates
to any difference associated with early or later scheduling. A hearing
must be held. For the state and its juvenile courts, the difference may
relate to the ease with which hearings can be scheduled and
accommodated .
Yet, under the new statutory scheme, the state is
burdened with the requirement of convening two temporary custody
hearings-one at the ten-day and one at the twenty-day point in the
case. For all parents and children in removal cases, and especially for
parents and children in situations of erroneous removal, the question is
really whether prolonging the parents' loss of a child, and the complete
disruption to the child's life can be justified, especially in light of what
may be an even more burdensome hearing schedule.
C. Children'sInterests
In considering the due process rights of children who are either
detained because they have been accused of some significant crime and
pose a risk to themselves or the community and children who are
involuntarily committed for mental health treatment, it is first important
to note that it is the child's liberty interest that is threatened in the event
of erroneous detention or commitment. Both the Schall and Parham
courts found a greater degree of interference with this liberty interest
than courts generally find in the removed child's interest in family
integrity or uninterrupted familial attachments. For the detained or
committed child, the interference is deemed "substantial. 286 For the
child removed from his parents' custody, the involuntary relocation to
foster home or shelter is seen as less detrimental to the child's wellbeing.287 Yet especially for the younger child, the complete, albeit
temporary, severance of the child's connection to all that is familiar
283. See
284. See
285. See
286. See
600 (1979).
287. See
id. at 16.
supra notes 157-67 and accompanying text.
CONN. GEN. STAT. § 46b-129 (1999).
Schall v. Martin, 467 U.S. 253, 292 (1984); Parham v. J.R., 442 U.S. 584,
Jordan v. Jackson, 15 F.3d 333, 350 (1994).
20001 FAMILIES, CHILD REMOVAL HEARINGS, AND DUE PROCESS
161
must be terrifying 8 and is, perhaps, no less significant than the distress
experienced by the child in a detention center or mental hospital.
The state's interest in relocating a child stems from its parens
patriae duty to protect children from their own criminal propensities,
from the debilitation of mental illness, or from their parents' alleged
abuse or neglect. In each instance, the child's private interests are
subordinate to those of the state. The due process protections offered to
children in the three situations, though, are significantly different. For
the detained child, the opportunity for a probable cause hearing is
available in seventy-two hours and for a full fact-finding hearing within
fourteen days. 219 The child committed for mental health treatment in
Connecticut is entitled to an evaluation by a neutral party within twentyfour hours and a full hearing within seventy-two hours.2'9 The child in
the second situation may expect a speedier process. For the child
removed from parents because of suspected neglect or abuse, there is no
twenty-four hour review of any kind. There is no seventy-two hour or
even fourteen day full and meaningful hearing. It is difficult to
understand the different treatment under the law that children in these
situations can expect. Whether legislators see a child's interest in
family as less deserving of protection than is an interest in liberty is
uncertain. What is certain is that Connecticut's law makers have not
treated the interests at risk of being erroneously deprived as deserving of
the same protection.
D. State Laws
The law of other states also provides a benchmark for evaluating
the "fundamental fairness" of the twenty-day hearing law. The Supreme
Court has noted that
[t]he fact that a practice is followed by a large number of states is not
conclusive in a decision as to whether that practice accords with due process,
but it is plainly worth considering in determining whether the practice offends
some principle of justice so rooted in29 the traditions and conscience of our
people as to be ranked as fundamental. '
288. See RESOURCE GUIDELINES, supranote 15, at 32.
289. See Schall, 467 U.S. at 293.
290. See CoNN. GEN. STAT. § 17a-78 (1999).
291. Leland v. Oregon, 343 U.S. 790, 798 (1952) (quoting Snyder v. Massachusetts,
291 U.S. 97, 105 (1934) (internal quotations omitted).
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As noted above, Connecticut has placed itself well beyond the time
limits statutorily mandated in all but one other state.292 Based on the
presumption that parents', children's, and states' interests are similarly
defined from state to state, and in the absence of any data showing that
Connecticut's practice of removing children is less prone to error (thus
requiring a lower standard of due process review) than is the practice in
other states, it is necessary to inquire about other possible reasons for
the requirement of additional time.
In theory, the additional time might be necessary to complete the
evaluation of the family. 293 This might suggest that the standards of
inquiry in forty-five states and the District of Columbia are inadequate
in providing the information needed by a court. Alternately, it might
suggest that child welfare investigators in other states are more efficient
and are capable of completing adequate investigation in a more timely
fashion. The additional time could also suggest that the court is simply
unable to offer hearings sooner because of constraints related to
caseload and available resources. Based on dicta in the Pamela B.
decision, this last explanation is the more likely reason.29 Connecticut
legislators may, indeed, perceive the court as unable to act within
commonly accepted time frames. Rather than redefine court practices
or appropriate increased funds, lawmakers, enacting revisions to section
46b-129, may instead have chosen to require less of the court. Respect
for due process protection may have been subordinated to administrative
impediments or fiscal priorities.
E. Juvenile Court Standards
Resource guidelines developed by the National Council of Juvenile
and Family Court Judges specify that meaningful temporary custody
hearings should be completed before removal or, if that is not possible,
within seventy-two hours of removal. 29 The preliminary hearing
recommended by the Council is not the preliminary hearing
contemplated by section 46b-129. The Council's GUIDELINES call for
substantive, meaningful hearings which consider whether the child
should go home or remain in protective custody and whether the child
292.
See supra notes 219-35 and accompanying text.
293.
See RESOURCE GUIDELINES, supra note 15, at 30.
294.
(1998).
295.
See Pamela B. v. Ment, 244 Conn. 296, 317-18, 709 A.2d 1089, 1101-02
See RESOURCE GUIDELINES, supra note 15, at 30.
2000] FAMILIES, CHILD REMOVAL HEARINGS, AND DUE PROCESS
163
would be more appropriately placed in another setting, familial or
otherwise.
296
The hearing, urges the Council, should also address the
family's immediate need for services, appropriate arrangements for the
child's continued contact with the parents, as well as the procedural
basics of confirming service of process and legal representation. 7
Section 46b-129(d), on the other hand, defines the preliminary hearing
as the time for appointing counsel, advising of rights, and entering
pleas. 98 The preliminary hearing does not provide any useful
opportunity for parents or children to present their story to the court.
That opportunity must wait until the time that the child has been out-ofhome for twenty days.2 99 In their Guidelines, the Council concedes that
conducting a complete preliminary hearing early in the case does entail
a "substantial initial investment of time and resources." 3°° The Council
also notes, though, that
[slignificant costs are incurred when a child is unnecessarily placed outside of
the home. A child can suffer serious emotional and behavioral problems from
the disruption and upheaval caused by placement. The parents- feelings of
inadequacy and helplessness may be intensified, thereby making efforts to
change their behavior even more difficult .... As a result of these and other
significant
effects of removing a child, extra efforts must often be
. made and 301
•
costs incurred to resolve problems as early as possible in each case.
In its State of Connecticut Court Improvement Project Report, the
Muskie Institute noted that the state's 1996 statute requiring a hearing
within ten days of removal allowed for three times as much time
3°2
between removal and hearing as was recommended by the Guidelines.
Noting that the standards advanced in the Guidelines represent a
"prescription for quality assurance, 3 °3 the report concluded that
"Connecticut falls considerably short" of providing the due process
With respect to the National Council's
protections recommended.)
section 46b-129 provides for subConnecticut's
recommendations,
standard procedural due process protection. Additionally, based on the
296.
297.
See id. at 37-40.
See id.
298.
See CONN. GEN. STAT. § 46b-129(d) (1999).
299.
300.
301.
302.
303.
304.
See id. § 46b-129(f).
RESOURCE GUIDELINES,
supra note 15, at 32.
Id.
See id. at 37.
Id. at 10.
RESOURCE GUIDELINES,
supra note 15, at 37.
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practice of forty-five states and the District of Columbia, Connecticut's
parents and children are not afforded the process of law due to parents
and children in other states.
VIII. REMEDIES
While Connecticut's statutory scheme may offer children and
parents sub-standard due process protection related to orders of
temporary custody, the juvenile courts, themselves, are involved in the
process of developing procedures which will more soundly protect the
fundamental interests at issue.
Beyond these court initiatives,
continuing dialogue among court administrators, judges, attorneys, child
advocates, and legislators may lead to practices which more closely
meet national standards.
A. Case Management Project
An initiative recently implemented in Connecticut's juvenile courts
has offered a viable option for addressing issues raised by parents who
contest the removal of a child from their home under an order of
temporary custody. The Case Management Project, piloted in the
Hartford juvenile court in December 1997 and operative in all juvenile
courts by October 1998, was designed to offer parents and DCF social
workers and their attorneys, as well as counsel for a child, the
opportunity to meet at the time of the ten-day hearing in order to review
and, if possible, resolve some or all contested issues. The convening of
a case management conference, mediated and facilitated by a court
services officer,0 5 reflects an expansion of Connecticut juvenile courts'
well-developed practice of using mediated case status conferences to
resolve child protection cases.3 0
As the case management conference protocol has been developed
and employed, at the time scheduled for the ten-day hearing, the court
has attorneys available for parents who have not yet retained counsel
and who are eligible for and wish to have a court appointed attorney.
Once a parent who requests counsel has had an opportunity to speak
with his or her attorney, the parents, their attorneys (privately retained
305. A Court Services Officer is a judicial employee with professional training in
child welfare, social work, and mediation.
306. NATIONAL CHILD WELFARE RESOURCE CTR. FOR ORGANIZATIONAL
DEVELOPMENT, FINAL REPORT: ANALYSIS OF CASE MANAGEMENT ON CHILD PROTECTION
PROCEEDINGS 5-6 (1999) [hereinafter FINAL REPORT].
2000 FAMILIES, CHILD REMOVAL HEARINGS, AND DUE PROCESS
165
or court appointed), DCF worker, Assistant Attorney General,
previously appointed counsel for the child, any guardian involved, and
the court services officer meet at the court to review the circumstances
which precipitated the child's removal. Typically, those in attendance
also discuss the parents' and agency's concerns with respect to other
issues, i.e., necessary services, placement resources, assessments, and
visitation.3 7 In situations where the removal is contested, parties have
the opportunity to discuss the specific conditions which caused DCF to
believe that the child would be at inninent risk if left in the home. In
this discussion, on the advice of counsel, parents may specifically refute
the Department's allegations and provide some alternate explanation of
the situation. Parents may also use this opportunity to show that the
conditions which led to the removal no longer exist.0 8
Case management conferences are, in part, opportunities for parties
to mediate their differences. While the child's safety is always the
ultimate concern, reports indicate that many disputed issues can be
resolved in a manner satisfactory to all parties. Even in fiercely
contested cases, the conference does allow the agency and parents the
opportunity to fully air their versions of the facts. Mediated discussions
can also result in the sharing of information essential to arriving at the
best possible outcome.3°9 In studies of mediated sessions in courts
outside Connecticut, participants report satisfaction with the results of
early mediation.1 0 In one study, parents reported that they felt "heard"
through the process. More than ninety percent of the parents surveyed
reported that mediation offered them a meaningful opportunity to really
explain their point of view and express their wishes.1 In mediation,
parents were also able to clarify just what it was that the child protection
agency needed from the parents in order to close the case. 311 One
attorney for a parent reported, "Doing mediation at the very start of the
case is helpful. Everyone can start off by working out an agreement
about why you are in court. If you do this at the beginning, you get off
on the right foot. ' 313 The mediated case management conference, at its
307.
308.
309.
See id.
See id.
See Nancy Thoennes, An Evaluation of Child Protection Mediation in Five
California Courts, FAM. & CONCILIATION CTS. REv. 184, 187 (1997).
310.
311.
312.
313.
See id. at 191.
Seeid. at 188.
See id.
Thoennes, supra note 309, at 186.
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best, can serve as an effective and meaningful avenue to resolve the
issue of a child's removal.
The case management conference may have several outcomes for
parents who contest the removal. In the most contentious situations,
where no resolution of any issue is possible, a contested hearing may be
scheduled. As the project was piloted under the pre-October 1998
statute, parents were offered a hearing on the same day as the Case
Management Conference (the ten-day hearing). Under the revised
section 46b-129, the contested hearing is not convened until the twentyday point in the case.314 Unless the court is disposed to hear the matter
sooner, parents can now only expect to enter a plea and be advised of
their rights at the ten-day hearing. The parents' opportunity to formally
defend against the allegations of risk of imminent harm to the child is
another ten days away.
In contested temporary custody cases, a second outcome to the
conference may involve the partial resolution of the issues. In this
situation, while the custody of the child may not be reinstated with the
parents, other concerns may be resolved. For example, DCF and the
family may agree on the child's placement with a family member, or
arrangements for increased contact between parent and child might be
developed. Here, the conference is ineffective insofar as the removal,
itself, is concerned. Again, the parents will need to wait up to ten more
days for a contested hearing. The proceeding does serve, however, to
mitigate some of the harm that could result from the removal.
A third possible outcome of the conference involves the vacating
of the order of temporary custody. In this case, the parents would have
convinced DCF, the Assistant Attorney General, and the child's attorney
that either the decision to remove the child was simply and
unambiguously erroneous, or, the more likely alternative, that the
harmful conditions which had existed are no longer present. Parents
and children in this situation realize the most obvious benefits of the
case management conference. Inasmuch as the conference offers the
parties an opportunity to address and correct the wrongful removal or
unnecessary out-of-home placement, the conference serves a due
process function.
The formal evaluation of the Case Management (Pilot) Project
indicated that the removal conferences at the pilot site were, in fact,
effective in improving the quality and timeliness of court proceedings.1 5
314.
315.
See CONN. GEN. STAT. § 46b-129 (1998).
See FINAL REPORT, supra note 306, at 8-9, 17-18, 20.
20001 FAMILIES, CHILD REMOVAL HEARINGS, AND DUE PROCESS
167
These conferences were found to offer parents and DCF an opportunity
to clarify the real issues of contention, and in most cases, to arrive at
some partial, if not complete, resolution of the temporary custody
issues.1 6 Mediated case management conferences as conducted in
juvenile courts across the state may serve to safeguard the fundamental
interests of parents and children to the extent that the parents' and
child's attorney have the opportunity to be heard and that the process
produces some agreement about the child's custody. In situations where
there is no agreement and parents must wait additional time for hearings
before the judge, conferences may mitigate the harm and hardship to
families, though not satisfying the requirements of due process.
B. Hearing Standards
While the Case Management Conference does offer parents and
children an opportunity to tell their stories and express their wishes, the
conference facilitator is not empowered to enter any decision where the
issue of the removal is not settled by some agreement of the parties. In
Connecticut's juvenile court scheme, all contested matters are decided
by a Superior Court judge. In the provisions of section 46b-129, the
proper time for the contested hearing and judgment is twenty days from
the removal. In Pamela B., as discussed above, the court noted that the
only reason offered for not convening the ten-day hearing in a timely
way was the court's inability to offer the time necessary for a fully
contested hearing.' 7 The Court Improvement Project report also blamed
crowded dockets for the court's inability to offer timely removal
hearings.3"8 In Connecticut, it is not uncommon for contested hearings
to continue for more than one full day. These adversarial hearings,
presided over by a judge, resemble trials. As many as six attorneys
(Assistant Attorney General, parents' and children's attorneys,
guardians ad litem for parents and children), as well as the parties
themselves may participate. Rules of evidence are observed. The most
recent amendment to section 46b-129(g), however, does allow for the
admission of sworn statements of mandated reporters without the
necessity of the reporter's actual presence, provided that the respondent
parents do not object.319 If they do object and request the presence of the
316.
317.
See id. at 17.
See Pamela B. v. Ment, 244 Conn. 296, 303, 709 A.2d 1089, 1095 (1998).
318.
See RESOURCE GUIDELINES, supra note 15, at 59.
See CoNN. GEN. STAT. § 46b-129(g) (Supp. 1999).
319.
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reporter, the state must call the reporter as a witness in order to
introduce the evidence."" All juvenile proceedings are recorded. For
the court to immediately conduct such a contested hearing, as the court
is now structured, entails the rescheduling of either another trial or a
short calendar docket of many cases.
Some of the states which offer a removal hearing promptly after
the child's removal employ standards and procedures different from
those used in Connecticut proceedings. These practices produce a
hearing of much shorter length, generally under two hours. In Hamilton
County, Ohio, for example, "emergency custody hearings" are convened
the day following the child's removal under an ex parte order.12 ' At this
hearing, parents are advised of their rights, counsel for parents and
guardian ad litem for the child are appointed, an in-depth inquiry
concerning the circumstances of the removal is undertaken, placement
resources are reviewed, and visitation is arranged.322 The court hears
evidence from parents and the state with regard to the need for
continued out-of-home placement. 2 3 In general, these proceedings are
conducted by a "referee" who, for the most part, directs the questioning
and elicits the information necessary to understand the circumstances of
the removal, the issues related to where the child may be safely placed,
and other information important to addressing the family's and child's
immediate needs. In general, these hearings last for one hour.3 24
In Kent County, Michigan, preliminary hearings to review the
emergency removal of a child from his or her home are conducted
within twelve hours of the removal. 32 5 (Michigan law requires that such
hearings be held within twenty-four hours.)3 26 Preliminary hearings are
usually conducted by referees who guide the inquiry; information is
presented through live testimony or through documents.127 Parents as
well as the parents' and children's attorneys may also ask questions.
Hearsay is admissible. 8 Most preliminary hearings are not recorded,
320.
321.
See id.
322.
323.
324.
325.
See id. at 39.
See id.
See id.
See MARK HARDIN
326.
327.
328.
See id.
See id. at 71.
See id.
See MARK HARDIN, JUDICIAL IMPLEMENTATION OF PERMANENCY PLANNING
REFORM: ONE COURT THAT WORKS 38 (1992).
ET AL., A SECOND COURT THAT WORKS:
IMPLEMENTATION OF PERMANENCY PLANNING REFORMS 58 (1995).
JUDICIAL
20001 FAMILIES, CHILD REMOVAL HEARINGS, AND DUE PROCESS
169
but may be at the request of an attorney. 29 At the conclusion of the
hearing, which generally lasts for an hour, the referee makes a decision
about the child's placement.330
Removal hearings as they are conducted in Hamilton County and
Kent County vary significantly from the contested temporary custody
hearings provided by Connecticut courts. First, the Ohio and Michigan
hearings are much shorter in length. Second, these proceedings tend to
be more informal, with referees rather than parties' attorneys eliciting
most of the testimony. In Kent County, the hearings are not generally
recorded. Hearings in the two counties lack the adversarial nature
which characterizes Connecticut's contested proceedings.
In Kent
County, the prosecutor is usually not present at the preliminary
hearing."' Finally, in both Hamilton and Kent Counties, the rules of
evidence are relaxed, allowing for the admission of hearsay and reliably
produced documents. It is logical to connect these informal procedures
with less time consuming hearings. With the referee's control of the
inquiry, the essential facts can come to light without the cautious
revelation and slow progress which mark many of Connecticut's fully
contested hearings.
The need for flexibility in creating procedures designed to protect
constitutional rights has received wide support from courts.33 The
central criteria in providing these procedures is that they offer an
opportunity
to be heard at a meaningful time and in a meaningful
333
manner. Many states accomplish the recommended timeliness of
hearings by minimizing the formality of the hearing. 4 In weighing the
time element against the protection offered by strict adherence to rules
of evidence, for example, some states opt in favor of promptness.
Implicit in these choices are the state's conclusions that hearings can be
meaningful and interests can be protected if hearings are conducted by
knowledgeable, trained court officers.
The apparent presumption upon which section 46b- 129 rests is that
removal hearings should resemble trials. The new provision in section
46b-129(g) that allows for the introduction of sworn written statements
without the actual testimony of the witness may represent a bit of
flexibility in the way such hearings are envisioned. In Anonymous v.
329.
330.
331.
332.
333.
334.
See
See
See
See
See
See
Hardin et al., supra note 325, at 71.
id. at 71-72.
Hardin,supra note 321, at 39.
Stanley v. Illinois, 405 U.S. 634, 650 (1972).
Boddie v. Connecticut, 401 U.S. 371, 378 (1971).
Hardin,supra note 321, at 39; Hardin et al., supra note 325, at 58.
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Norton, the state supreme court warned that "laxity in procedural
safeguards cannot be swept away by mere reference to the so-called
'informalities' of Juvenile Court procedure." 315 In In re Juvenile Appeal,
the state's appellate court later observed that "certain procedural
informalities [in juvenile proceedings] are constitutionally permissible
of the
[allowing, for example,] a 'liberal rather than a strict application
336
formal rules of evidence, provided due process is observed.'
It is understandable that juvenile matters attorneys and juvenile
court judges, themselves, may be reluctant to compromise the protection
inherent in formal rules of evidence. But if it is true that Connecticut
courts cannot offer fully contested, adversarial hearings within
acceptable time parameters, in the interest of reducing the harmful
results of erroneous removal, the possibility of less formal proceedings
might be considered. The disadvantages actually realized as the result
of a less formal proceeding, if they exist, are not well-known. What is
known is that the harm and hardship to parents and children can be
reduced by the earlier opportunity for a hearing.
IX. CONCLUSION
Connecticut's recent revision to section 46b-129 of the General
Statutes raises, on its face, important questions about how the state will
protect the fundamental value of family integrity while serving the
sometimes competing interest of child safety. Connecticut legislators,
in doubling the time between removal and the holding of a fact finding
hearing, have essentially determined that whether children are truly safe
in their parents' care, or whether families should remain together, does
not warrant the fiscal costs or administrative inconveniences associated
with a timely determination of that crucial issue.
Beyond this facial statement, when examined against the policy of
the American legal and child protection communities and the practice of
the large majority of American states, section 46b-129 is notably substandard. Its provisions for temporary custody hearings stand against
the current of contemporary thought which seeks the timely and
meaningful review of all decisions to separate family members. In only
one other state can a person be deprived of his or her most valued
335.
Anonymous v. Norton, 168 Conn. 421,425, 362 A.2d 532, 535 (1975).
336. In re Juvenile Appeal, 3 Conn. App. 184, 190, 485 A.2d 1362, 1367 (quoting
COLIN C. TAIT & JOSEPH A. LAPLANTE, HANDBOOK OF CONNECTICUT EVIDENCE § 1.2
(Supp.1982)).
2000] FAMILIES, CHILD REMOVAL HEARINGS, AND DUE PROCESS
171
associations with protection offered by the due process of law so
delayed. Providing a temporary custody hearing at a time and in a
manner meaningful to parents and children is not impossible; it is
accomplished in most states. Practices already in place in Connecticut's
juvenile courts can and do mitigate the harm associated with all
removals, whether erroneous or not. Further efforts to provide timely
and meaningful procedural protection to families simply depend on the
state's resolve to guarantee that parents' and children's fundamental
interests will be respected and protected by the process of state law.
PamelaMcAvay