In re David W

In In re David W., 52 Conn. App. 576, 727 A.2d 264 (1999), rev'd on other grounds, 254 Conn. 676, 759 A.2d 89 (2000), the respondents' infant child was admitted to the hospital with life threatening injuries. The respondents had exclusive control and custody of the child immediately preceding his injuries. After the child was discharged from the hospital, he was placed in the care of the department, which obtained an order of temporary custody. The respondents pleaded nolo contendere to the neglect petition that had been filed by the department, and the court adjudicated the child to be neglected pursuant to General Statutes (Rev. to 1993) 46b-129 (d). The court, relying on General Statutes (Rev. to 1995) 17a-112 (b) (2) and (3), granted the commissioner's subsequent petition for the termination of the respondents' parental rights. Pursuant to General Statutes (Rev. to 1995) 17a-112 (b) (2), the trial court may terminate parental rights if "the parent of a child who has been found by the superior court to have been neglected or uncared for in a prior proceeding has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . ." Pursuant to General Statutes (Rev. to 1995) 17a-112 (b) (3), the trial court may terminate parental rights on the ground that "the child has been denied, by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for his physical, educational, moral or emotional well-being. Nonaccidental or inadequately explained serious physical injury to a child shall constitute prime facie evidence of acts of parental commission or omission sufficient for the termination of parental rights . . . ." On appeal, the respondents in In re David W. argued that the doctrine of res judicata barred the court's reliance on 17a-112 (b) (2), which requires a prior adjudication that the child has been neglected or uncared for. Specifically, they argued that the court's decision should be reversed because of the failure of the department to seek termination in the neglect proceeding in which the department had sought custody of the child after learning of the injuries that he had sustained while living with his parents. The Court disagreed with the respondents in that case, concluding, in relevant part, that: "although General Statutes (Rev. to 1995) 17a-112 (e) does provide that a neglect petition 'may be accompanied by or, upon motion of the petitioner, consolidated with a petition for termination of parental rights,' that procedure is not mandatory but optional on the part of the department. When 17a-112 (b) (2) is the ground for termination, the requirement that the adjudication of neglect occur 'in a prior proceeding' indicates that the termination proceeding may not be combined with the neglect proceeding and that separate judgments on each petition are necessary. The mandatory findings required by 17a-112 (d) concerning the services to be provided to the parent of a child found to have been neglected and the efforts of such a parent to adjust his conduct so that reunification with the child might be achieved could not be made unless there was sufficient time between the judgment on the neglect petition and the hearing on the termination petition to make the studies needed to present the evidence for the prescribed findings. We conclude that, because our statutes require those findings, there must be a sufficient hiatus for that purpose between the adjudications of neglect and termination petitions and, accordingly, the termination judgment in this case is not barred by the prior judgment on the neglect petition. Each petition pertains to a separate transaction and, therefore, the doctrine of res judicata is not applicable." Id., 584.