In re Juvenile Appeal (83-CD)

This is an appeal by the defendant, mother of five children, from the order of the Superior Court for juvenile matters granting tern-*278porary custody of her children to the plaintiff commissioner of the department of children and youth services.

The defendant and her six children lived in a small apartment in New Haven. They had been receiving services from the department of children and youth services (hereinafter DCYS) as a protective service family1 since 1976, and were supported by the Aid to Families with Dependent Children program.2 Michelle Spicknall, a DCYS caseworker, was assigned to the defendant’s case in January, 1979. In the next nine months she visited the defendant’s home twenty-seven times. She considered the family situation “marginal,” but noted that the children were “not abused [or] neglected.” It was Spicknall’s opinion that the children were very happy and active, and that they had a “very warm” relationship with their mother.

During the night of September 4-5, 1979, the defendant’s youngest child, nine month old Christopher, died. The child was brought by ambulance to Yale-New Haven Medical Center where resuscitation was unsuccessfully attempted by his pediatrician, Robert Murphy. No cause of death could be determined at that time, but the pediatrician noticed some unexplained superficial marks on Christopher’s body.

*279Because of Christopher’s unexplained death, the plaintiff commissioner of children and youth services seized custody of the defendant’s five remaining children on September 5, 1979, under authority of the “96-hour hold” provision of General Statutes § 17-38a (e),3 which permits summary seizure if the commissioner has probable cause to believe that a child is “suffering from serious physical illness or serious physical injury or is in immediate physical danger from his surroundings, and that immediate removal from such surroundings is necessary to insure the child’s safety . . . .” (Emphasis added.)

*280On September 7, 1979, in the Juvenile Court for New Haven, DCYS filed petitions of neglect under General Statutes §46b-129 (a)4 for each of the defendant’s children. Accompanying each petition was an affidavit for orders of temporary custody asking that the court issue temporary ex parte orders to keep the five children in DCYS custody under authority of §46b-129 (b) (2).5 The petitions alleged, in addition to Christopher’s unex*281plained death, that the defendant’s apartment was dirty, that numerous roaches could be found there, that beer cans were to be found in the apartment, that the defendant had been observed drinking beer, that on one occasion the defendant may have been drunk, that a neighbor reported that the children once had been left alone all night,6 and that the two older children had occasionally come to school without having eaten breakfast. On the basis of these allegations, on September 7, 1979, the court granted, ex parte, temporary custody to the commissioner pending a noticed hearing on temporary custody set for September 14, 1979, within ten days of the ex parte order as required by §46b-129 (b) (2). The court also set October 1, 1979, for a hearing on the neglect petitions.7

At the September 14 temporary custody hearing, DCYS presented testimony of Spicknall confirming and elaborating on the conditions of the defendant’s home and on the defendant’s beer drinking. Christopher’s pediatrician testified concerning *282Christopher’s treatment and physical appearance when the child was brought to the hospital on September 5. The doctor also testified that, although the pathologist’s report on the autopsy was not complete,8 the external marks on Christopher’s body were not a cause of death, that no internal injuries were found, and that the child had had a viral lung infection. He also explained, on cross-examination, the term “sudden infant death syndrome” and its pathology. At the conclusion of the state’s case, the court found “probable cause” and ordered temporary custody of the children to remain with the plaintiff commissioner of children and youth services.9

The defendant appealed to this court claiming that General Statutes §46b-129 (b)10 violates the due process clause of the fourteenth amendment both because it is an impermissible infringement on her right to family integrity, and because the statute is unconstitutionally vague. The defendant *283also claims error in the trial court’s determination that “probable cause” is the standard of proof in a temporary custody proceeding. "We conclude that § 46b-129 (b) is constitutional; however, we do find that the trial court erred when it decided that “probable cause” is the standard of proof in a temporary custody proceeding.

As hereinafter set forth, we hold: (1) that § 46b-129 (b) is constitutional because it must be read together with § 17-38a which contains adequate criteria for determining whether temporary custody of children may be taken from the parent by court order; and (2) that the standard of proof applicable to temporary custody proceedings pursuant to § 46b-129 (b) is a fair preponderance of the evidence.

I

Constitutionality of General Statutes §46b-129 (b)

A

FAMILY INTEGRITY

The Connecticut legislature has declared: “The public policy of this state is: To protect children whose health and welfare may be adversely affected through injury and neglect; to strengthen the family and to make the home safe for children by enhancing the parental capacity for good child care; to provide a temporary or permanent nurturing and safe environment for children when necessary; and for these purposes to require the reporting of suspected child abuse, investigation of such reports by a social agency, and provision of services, where needed, to such child and family.” General Statutes § 17-38a (a).

*284In administering this policy, courts and state agencies must keep in mind the constitutional limitations imposed on a state which undertakes any form of coercive intervention in family affairs. The United States Supreme Court has frequently emphasized the constitutional importance of family integrity. “The rights to conceive and to raise one’s children have been deemed ‘essential,’ ‘basic civil rights of man,’ and ‘[r]ights far more precious . . . than property rights.’ ‘It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.’ The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Ninth Amendment.” (Citations omitted.) Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972). It must be stressed, however, that the right to family integrity is not a right of the parents alone, but “encompasses the reciprocal rights of both parents and children. It is the interest of the parent in the ‘companionship, care, custody and management of his or her children,’ Stanley v. Illinois, [supra], and of the children in not being dislocated from the ‘emotional attachments that derive from the intimacy of daily association,’ with the parent, [Smith v.] Organization of Foster Families [for Equality and Reform, 431 U.S. 816, 844, 97 S. Ct. 2094, 53 L. Ed. 2d 14 (1977)].” Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir. 1977). This right to family integrity includes “the most essential and basic aspect of familial privacy — the right of the family to remain together without the coercive interference of the awesome power of the state.” Duchesne v. Sugarman, supra.

*285B

CRITERIA EOR COERCIVE INTERVENTION BY THE STATE

Where fundamental rights are concerned we have a two-part test: “[1] regulations limiting these rights may be justified only by a ‘compelling state interest,’ and ... [2] legislative enactments must be narrowly drawn to express only the legitimate state interests at stake.” Roe v. Wade, 410 U.S. 113, 155, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). The state has a substantial interest in protecting minor children; Stanley v. Illinois, supra, 649; Prince v. Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438, 88 L. Ed. 645 (1944); intervention in family matters by the state is justified, however, only when such intervention is actually “in the best interests of the child,” a standard long used in this state. See General Statutes §§ 17-43a, 46b-129 (e); State v. Anonymous, 179 Conn. 155, 165, 425 A.2d 939 (1979); In re Juvenile Appeal (Anonymous), 177 Conn. 648, 661-62, 420 A.2d 875 (1979).

Studies indicate that the best interests of the child are usually served by keeping the child in the home with his or her parents. “Virtually all experts, from many different professional disciplines, agree that children need and benefit from continuous, stable home environments.” Institute of Judicial Administration — American Bar Association, Juvenile Justice Standards Project, Standards Relating to Abuse and Neglect, p. 45 (Tentative draft, 1977) (IJA-ABA, STDS). The love and attention not only of parents, but also of siblings, which is available in the home environment, cannot be provided by the state. Unfortunately, an order of temporary custody often results in the children of one family being separated and scattered to dif*286ferent foster homes with little opportunity to see each other. Even where the parent-child relationship is “marginal,” it is usually in the best interests of the child to remain at home and still benefit from a family environment.11

The defendants’ challenge to the temporary custody statute, §46b-129 (b), must be addressed in light of the foregoing considerations. The defendant contends that only when the child is “at risk of harm” does the state’s interest become a compelling one, justifying even temporary removal of the child from the home. We agree.

In custody proceedings, any criteria used to determine when intervention is permissible must take into account the competing interests involved. *287The parent has only one interest, that of family integrity; Stanley v. Illinois, supra, 651; and the state has only one compelling interest, that of protecting minor children. Lassiter v. Department of Social Services, 452 U.S. 18, 27, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981); Sims v. State Department of Public Welfare, 438 F. Sup. 1179, 1191 (S.D. Tex. 1977), rev’d on other grounds sub nom. Moore v. Sims, 442 U.S. 415, 99 S. Ct. 2371, 60 L. Ed. 2d 994 (1979). The child, however, has two distinct and often contradictory interests. The first is a basic interest in safety; the second is the important interest, discussed above, in having a stable family environment. Connecticut’s child welfare statutes recognize both the conflicting interests and the constitutional limitations involved in any intervention situation. Thus, under the criteria of General Statutes § 17-38a (e), summary assumption of temporary custody is authorized only when there is probable cause to believe that “the child is suffering from serious physical illness or serious physical injury or is in immediate physical danger from his surroundings, and that immediate removal from such surroundings is necessary to insure the child’s safety . . . .” (Emphasis added.)

The language of § 17-38a (e) clearly limits the scope of intervention to cases where the state interest is compelling, as required by the first part of the test from Roe v. Wade, supra. Intervention is permitted only where “serious physical illness or serious physical injury” is found or where “immediate physical danger” is present. It is at this point that the child’s interest no longer coincides with that of the parent, thereby diminishing the magnitude of the parent’s right to family integrity; In re Angelia P., 28 Cal. 3d 908, 916-17, 623 P.2d 198 (1981); and *288therefore the state’s intervention as parens patriae to protect the child becomes so necessary that it can be considered paramount. Alsager v. District Court, 406 F. Sup. 10, 22-23 (S.D. Iowa 1975). A determination that the state interest is compelling does not alone affirm the constitutionality of the statute. More is needed. The second part of the due process analysis of Roe v. Wade, supra, requires that statutes affecting fundamental rights be “narrowly drawn to express only the legitimate state interests at stake.” General Statutes § 17-38a (e) meets this part of the test by requiring, in addition to the compelling need to protect the child, that the assumption of temporary custody by the commissioner be immediately “necessary to insure the child’s safety.” This phrase requires that various steps short of removal from the home be used when possible in preference to disturbing the integrity of the family. The statute itself mentions supervised in-home custody, but a wide range of other programs short of removal are a part of existing DCYS procedure. See DCYS': Programs and Priorities, FY 1979.

The challenged statute, §46b-129 (b), does not contain the “serious physical illness or serious physical injury” or “immediate physical danger” language of § 17-38a (e). We note, however, that § 46b-129 (b) does limit the temporary custody order to those situations in which “the child or youth’s condition or the circumstances surrounding his care require that his custody be immediately assumed to safeguard his welfare.” It is axiomatic that statutes on a particular subject be “considered as a whole, with a view toward reconciling their separate parts in order to render a reasonable overall interpretation .... We must avoid a conse-*289qnence which fails to attain a rational and sensible result which bears most directly on the object which the legislature sought to obtain.” LaProvidenza v. State Employees’ Retirement Commission, 178 Conn. 23, 29, 420 A.2d 905 (1979); see United Aircraft Corporation v. Fusari, 163 Conn. 401, 414, 311 A.2d 65 (1972). This is no less true when the legislature has chosen to place related laws in different parts of the General Statutes. Therefore, the language limiting coercive intervention in chapter 301 (“Child Welfare”), § 17-38a, must be read as applying equally to such intervention in chapter 815t (“[Family Law] Juvenile Matters”), §46b-129. Because we hold that General Statutes § 46b-129 (b) may be applied only on the basis of the criteria enunciated in § 17-38a, we reject the defendant’s claim that § 46b-129 (b) is unconstitutional.12

In the instant case, no substantial showing was made at the temporary custody hearing that the defendant’s five children were suffering from either *290serious physical' illness or serious physical injury, or that they would he in immediate physical danger if they were returned to the defendant’s home. The DCYS caseworker admitted at trial, as did the state’s counsel at argument before this court, that without the unexplained death of Christopher there was no reason for DCYS to have custody of the other children. The medical evidence at the hearing indicated no connection between Christopher’s death and either the defendant or the conditions in her home. While the final autopsy report was not available at the hearing, the pediatrician testified that the marks on Christopher’s body were not related to the child’s death. There was, therefore, no evidence before the court to indicate whether his death was from natural causes or was the result of abuse. Yet with nothing before it but subjective suspicion, the court granted the commissioner custody of the defendant’s other children. It was *291error for the court to grant to the commissioner temporary custody when no immediate risk of danger to the children was shown.

It appears from this record that DCYS has not heeded the suggestion of this court that the agency bears a responsibility of continuing review of cases it is litigating. In In re Juvenile Appeal (Anonymous), 177 Conn. 648, 662, 420 A.2d 875 (1979), we stated that when the cause for the commitment of children to DCYS custody ends, the state bears the burden of showing the necessity to continue the commitment. Although that holding concerned a parent’s petition for revocation of a commitment, implicit in our holding was that the state had a duty to seek the best interests of the child even after adversary proceedings with the parent had begun. In this case, at some time shortly after the orders of temporary custody were granted, the state received the final autopsy report which effectively exonerated the defendant from any wrongdoing in Christopher’s death. The reason for the custody order then no longer existed. It was then incumbent on DCYS to reunite the family. “In this situation, the state cannot constitutionally ‘sit back and wait’ for the parent to institute judicial proceedings. It ‘cannot . . . [adopt] for itself an attitude of “if you don’t like it, sue. ” ’ ” Duchesne v. Sugarman, 566 F.2d 817, 828 (2d Cir. 1977).13

*292Petitions for neglect and for temporary custody orders, like the petitions to terminate parental rights in Duchesne v. Sugarman, supra, or in In re Juvenile Appeal (Anonymous), supra, “are particularly vulnerable to the risk that judges or social workers will be tempted, consciously or unconsciously, to compare unfavorably the material advantages of the child’s natural parents with those of prospective adoptive parents [or foster parents].” In re Juvenile Appeal (Anonymous), supra, 672.

This case clearly shows that these dangers do exist. It is shocldng that the defendant’s children have been in “temporary” custody for more than three years. This is a tragic and deplorable situation, and DCYS must bear full responsibility for this unwarranted and inexcusable delay. Too often the courts of this state are faced with a situation where, as here, litigation has continued for years while the children, whose interests are supposed to be paramount, suffer in the insecurity of “temporary” placements. The well-known deleterious effects of prolonged temporary placement on the child, which we have discussed above, makes continuing review by DCYS of all temporary custody and commitment cases imperative. Where appropriate, the agency can and must take unilateral action either to reunite families or to terminate parental rights as expeditiously as possible to free neglected children for placement and adoption in stable family settings.

*293The failure of DCYS properly to administer § 46b-129 does not, however, affect its constitutionality. The statute is constitutional because when it is read together with § 17-38a, as it must be, it is justified by a compelling state interest and is narrowly drawn to express only that legitimate state interest. Roe v. Wade, supra.

II

Burden of Proof; Standard of Proof

The defendant’s children were initially removed from her custody pursuant to the ninety-six hour hold provision of General Statutes § 17-38a (e). As explained above, this statute allows the commissioner of children and youth services to remove a child temporarily from the home, without court order, if the commissioner has probable cause to believe that the child is suffering from serious physical illness or physical injury, or is in immediate physical danger. The plaintiff commissioner promptly filed petitions of neglect with the Superior Court under General Statutes § 46b-129 (b), accompanied by a request for an ex parte order that the commissioner could retain custody pending an adversary hearing on temporary custody. § 46b-129 (b) (2). Section 46b-129 (b) provides for court ordered temporary custody in either of two ways after a neglect petition is filed. Under subsection (1) of §46b-129 (b), the court may issue to the parents an order to show cause why the court should not vest custody in the commissioner.14 Under sub*294section (2), used in this case, if the court has “reasonable cause to find” that “the circumstances surrounding [the child’s] care require that his custody be immediately assumed to safeguard his welfare . . . the court may issue a temporary custody order ex parte, “pending a hearing upoii the petition [for temporary custody] which shall be held within ten days . . . This procedure is in two steps: first, upon a “reasonable cause” finding, the court may issue an ex parte temporary custody order of no more than ten days duration; and, second, a noticed temporary custody hearing must be held within ten days to determine whether the ex parte order should be confirmed.

In this case, the unexplained death of Chris*-topher, combined with the marks on his body, was sufficient to support a finding under § 17-38a (e) that there was probable cause to believe that the defendant’s other children might be “in immediate' physical danger,” as required for removal from the home under the standards enunciated earlier in this opinion. Therefore, both the initial seizure by DCYS under the ninty-six hour hold provision of § 17-38a (e), and the court’s decision to issue an ex parte temporary custody order under the first stepI of § 46b-129 (b) (2) on September 7, 1979, were entirely proper. Neither of these actions is challenged here.

*295The court below erred, however, at the second step of § 46b-129 (b) (2) when it confirmed its order of temporary custody after taking evidence at the temporary custody hearing on September 14, 1979, and October 1, 1979. On the basis of testimony heard on those two days, the court found “probable cause” to continue custody in the commissioner, and concluded that the defendant’s children were “presumptively neglected and uncared-for children whose return to parental care would not adequately assure their well being prior to an adjudication on the merits of the petitions alleging their neglect.” The defendant claims that the court erred by presuming neglect and by requiring “probable cause” as the burden of proof, thereby effectively shifting the burden of proof to the defendant. We agree. We hold that the burden of proof is always on the state when it seeks to remove children from the home. We hold further that the standard of proof to be used in temporary custody hearings under General Statutes § 46b-129 (b) (2) is the normal civil standard of a fair preponderance of the evidence.

A

BURDEN OF PROOF

We noted above that it is both a fundamental right and the policy of this state to maintain the integrity of the family. Where a fundamental right is involved, the burden of proof is always on the party seeking to interfere with that right. In re Juvenile Appeal (Anonymous), 177 Conn. 648, 662, 420 A.2d 875 (1979). The trial court’s conclusion that the children were “presumptively neglected” impermissibly shifted to the defendant the burden of proof to show that the children were not neglected, and was, therefore, error.

*296B

STANDARD OF PROOF

General Statutes § 46b-129 (b) establishes a reasonable cause standard of proof for the issuance of ex parte orders of temporary custody, but does not prescribe the standard of proof required in the second stage of proceedings under that section, when an adversary evidentiary temporary custody hearing is held. Where no standard of proof is provided in a statute, due process requires that the court apply a standard which is appropriate to the issues involved.

In Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982), the United States Supreme Court held that in hearings on petitions to terminate parental rights, due process requires that the state prove statutory termination criteria by “clear and convincing evidence” rather than by the normal civil standard of a “fair preponderance of the evidence.” Santosky v. Kramer, supra, 769-70. The defendant urges us to adopt the same higher standard of proof for hearings on temporary custody, while the state suggests that the court below was correct in applying a “probable cause” standard. We reject both suggestions and hold that the proper standard of proof in temporary custody hearings is the normal civil standard of a fair preponderance of the evidence. See Darrow v. Fleischner, 117 Conn. 518, 519-20, 169 A. 197 (1933). The party seeking a change in custody, in this case the state, must prove by a fair preponderance of the evidence that custody should be taken from the parent and vested in the commissioner on a temporary basis under the criteria established in §46b-129 (b).

*297Despite the Supreme Court determination in Santosky, supra, that parental termination hearings require the higher standard, we reject the “clear and convincing evidence” standard for temporary custody hearings because: (1) the nature of the private interests concerned in the two kinds of hearings differs, and (2) the deprivation of rights in a temporary custody adjudication is neither final nor irrevocable.

“ ‘The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he [or she] may be “condemned to suffer grievious loss.” ’ [Citation omitted.] Whether the loss threatened by a particular type of proceeding is sufficiently grave to warrant more than average certainty on the part of the factfinder turns on both the nature of the private interest threatened and the permanency of the threatened loss.” Santosky v. Kramer, supra, 758. “[T]he minimum standard of proof tolerated by the due process requirement reflects not only the weight of the private and public interests affected, but also a societal judgment about how the risk of error should be distributed____” Id., 755.

1. Private Interests

In the termination of parental rights hearing discussed in Santosky, the United States Supreme Court emphasized that only the fundamental family integrity interest of the parent was at stake. “The factfinding [hearing] does not purport — and is not intended — to balance the child’s interest in a normal family home against the parents’ interest in raising the child. . . . Rather, the factfinding hearing pits the State directly against the parents.” Santosky *298v. Kramer, supra, 759. In a hearing on temporary custody, however, the child’s interests are very much at issue. We hold today that no temporary custody order may issue unless the child is suffering from serious physical illness or serious physical injury or is in immediate physical danger. We also hold that the child’s safety pending further proceedings is the primary concern of a temporary custody hearing. Therefore, there are two competing interests: — the safety of the child and the parent’s right of family integrity — at stake in a temporary custody hearing, whereas only the parent’s family integrity interest is directly involved in the fault stage of a termination of parental rights proceeding like thát in Santosky. The child, of course, has an interest both in safety and in family integrity. The state, as parens patriae, represents the safety interest of the child in custody proceedings. This interest must be balanced against the combined family integrity interests of parent and child, which are represented by the parent. An elevated standard of proof cannot protect the child’s interests, because some interest of the child is adversely affected whether the state or the parent prevails. The child’s interests are best protected not by an elevated standard of proof, but by the “risk of harm” standards enunciated today.

Where two important interests affected by a proceeding are in relative equipoise, as they are in this situation, a higher standard of proof would necessarily indicate a preference for protection of one interest over the other. See In Re Winship, 397 U.S. 358, 371, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) (Harlan, J., concurring). We see no reason to make such a value determination, and find that the various interests in a temporary custody hear*299ing are best served by applying the normal civil standard of proof which is a fair preponderance of the evidence.

2. Permaneiicy of Deprivation of Rights

The fair preponderance of the evidence standard is also appropriate in § 46b-129 (b) hearings because of the temporary nature of the orders contemplated by these proceedings. In Santosky v. Kramer, supra, 759, the court emphasized that an elevated standard of proof was required because the “decision terminating parent rights is final and irrevocable.” (Emphasis in original.) A decision granting temporary custody to the commissioner of children and youth services certainly affects important rights of the parent and the child, as explained in part I of our opinion. The decision, however, is neither final nor irrevocable. The determination is necessarily reviewed during the hearings on the neglect petition under §46b-129 (a) and (c).15 It is also reviewable upon a petition for revocation of custody filed, inter alia, by the parent or by DCYS under § 46b-129 (g) ;16 and, therefore, the *300deprivation of the parent’s right to care and custody of his or her children is much less serious in a temporary custody hearing than in the Santosky termination of parental rights proceeding.

In conclusion, we hold that the fair preponderance of the evidence standard of proof must be applied in temporary custody proceedings, both because the private interests involved are relatively balanced between the safety of the child and the combined family integrity interests of parent and child, and also because any deprivation of rights is both temporary and reviewable.

There is error, and the ease is remanded with direction to set aside the orders of temporary custody.

In this opinion Peters, Parskey and Grillo, Js., concurred.