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In re Shane M.

Supreme Court of Connecticut

August 28, 2015

IN RE SHANE M. [*]

Argued October 24, 2014.

Page 1248

[Copyrighted Material Omitted]

Page 1249

Petition by the Commissioner of Children and Families to terminate the respondents' parental rights with respect to their minor child, brought to the Superior Court in the judicial district of Hartford, Juvenile Matters, and tried to the court, Burgdorff, J.; judgment terminating the respondents' parental rights, from which the respondent father appealed to the Appellate Court, Alvord, Bear and Pellegrino, Js., which affirmed the judgment of the trial court, and the respondent father, on the granting of certification, appealed to this court.

SYLLABUS

The respondent father appealed to the Appellate Court from the trial court's judgment terminating his parental rights with respect to his minor child, S, and appointing the petitioner, the Commissioner of Children and Families, as statutory parent. The petitioner had filed a petition for neglect based in part on the history of domestic violence between the respondent and S's mother, and their cohabitation, despite protective orders against their doing so, as well as on the respondent's history of substance abuse and mental health issues. At that time, the respondent was referred for parenting education and substance abuse evaluation and counseling, after which he was diagnosed with depression, attention deficit hyperactivity disorder and other mental health issues for which therapy was recommended. Thereafter, due to ongoing criminal issues and domestic violence regarding the respondent and S's mother, the commissioner was granted temporary custody of S. At the hearing on temporary custody, the respondent agreed to several specific court-ordered steps to facilitate reunification with S, including requirements that he participate in parenting counseling and counseling to address issues of depression and anger management, that he submit to random drug screens as determined by the Department of Children and Families, that he refrain from using illegal drugs or abusing alcohol, and that he cooperate with service providers' recommendations for parenting, individual and family counseling, and substance abuse assessment and treatment. The respondent subsequently pleaded nolo contendere to the neglect petition and the court reiterated the specific steps that the respondent previously had been ordered to follow. The respondent resumed his counseling sessions, however, he missed several sessions, and expressed that he did not feel that he needed therapy, while presenting with very high anxiety and stress. He was subsequently arrested for possession of a controlled substance and also tested positive for marijuana on four occasions. The respondent was recommended by a department social worker to take additional parenting education and was offered, but refused, a parenting mentor during his visits with S to assist him in raising S. He also was arrested for disorderly conduct involving an incident at his grandfather's house when he threatened to burn the house down. The department thereafter petitioned the court to terminate the respondent's parental rights, at which time S had been in the commissioner's custody for thirteen months. A clinical psychologist conducted a court-ordered evaluation of the respondent and concluded, inter alia, that without medication, the respondent would continue to have anxiety, depression and substance abuse issues. The psychologist also recommended further participation in substance abuse programs, given that the respondent previously had refused to participate. As a result of his findings, the psychologist recommended termination of the respondent's parental rights. At trial on the petition to terminate his parental rights, the trial court found that the department had made reasonable efforts to rehabilitate the respondent and to reunify him with S, and that the respondent had failed to rehabilitate or sufficiently benefit from the department's services. The trial court found troubling the fact that the respondent continually asserted that he participated in the services only to appease the department, and found that he repeatedly refused to cooperate with court-ordered recommendations, and had continually stated that he did not engage in substance abuse but he had refused to engage in substance abuse testing of his hair follicles. During the dispositional phase of the proceedings, the trial court considered S's best interests and accordingly terminated the respondent's parental rights. On appeal, the respondent claimed, inter alia, that the trial court improperly terminated his parental rights pursuant to the statute (§ 17a-112 [j] [B]) governing the personal rehabilitation of a parent of a neglected child, based on an overly broad interpretation of that statute. The Appellate Court affirmed the trial court's judgment, and the respondent, on the granting of certification, appealed to this court. Held :

1. The respondent could not prevail on his claim that the Appellate Court improperly affirmed the termination of his parental rights for failure to rehabilitate under § 17a-112 (j) (3) (B) because the trial court had relied on conduct of the respondent not encompassed by the court-ordered specific steps, this court having concluded that the respondent had ample notice of all of the steps with which he was expected to comply, and the conduct that the trial court considered in terminating his parental rights fell within the scope of the court-ordered specific steps that were provided to the respondent on two separate occasions; this court concluded, after applying the appropriate standard of review pertaining to evidentiary sufficiency, that is, whether the trial court could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify that court's ultimate conclusion, that the respondent's rejection of a parental aide during visitation with S, his repeated statements that he attended court-ordered rehabilitation programs only to appease the department, and his refusal to undergo a medical assessment by a psychiatrist for controlling his mental health issues clearly contravened the specific steps ordered by the trial court and supported its conclusion that the respondent had failed to achieve a sufficient degree of personal rehabilitation.

2. The trial court's determination, based on its factual findings and the reasonable inferences drawn therefrom, that the respondent failed to achieve sufficient rehabilitation that would encourage the belief that, within a reasonable time, he could assume a responsible position in S's life as required by § 17a-112 (j) (3) (B) was supported by clear and convincing evidence; a review of the record supported the trial court's determination that although the respondent participated in most of the services offered by the department, albeit with varying degrees of motivation, his failure to adequately address his substance abuse, mental health and domestic violence issues remained significantly deficient.

3. There was no merit to the respondent's claim that the trial court improperly inferred that he continued to engage in substance abuse on the basis of his refusal to submit to a hair follicle drug test without first informing him that such an adverse inference could be drawn, this court having concluded that the respondent had adequate notice of the consequences of his failure to adhere to the specific steps ordered by the trial court that he refrain from drug use and that he submit to drug testing; furthermore, the Appellate Court properly declined to expand the parent and child testimonial right to silence articulated in the rule of practice (§ 32a-1 [h]) and the statute (§ 46b-137 [d]) governing written or oral confessions, admissions and statements, to the refusal to submit to a court-ordered drug test.

Jon L. Schoenhorn, with whom was Irene J. Kim, for the appellant (respondent father).

Carolyn Signorelli, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).

Joshua Michtom, assistant public defender, filed a brief for the Office of the Chief Public Defender as amicus curiae.

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js. In this opinion PALMER, EVELEIGH, McDONALD and ESPINOSA, Js., concurred.

OPINION

Page 1250

[318 Conn. 572] ROGERS, C. J.

The primary issue in this appeal is whether the trial court properly relied on certain conduct of the respondent father, Matthew M. (respondent), in granting the petition to terminate his parental rights. The respondent appeals from the judgment of the Appellate Court affirming the trial court's decision to terminate his parental rights as to his minor child, Shane M., and to appoint the petitioner, the Commissioner of Children and Families (commissioner), as statutory parent. In re Shane M., 148 Conn.App. 308, 330, 84 A.3d 1265 (2014). The respondent claims that

Page 1251

the Appellate Court improperly affirmed the trial court's judgment terminating his parental rights pursuant to General Statutes § 17a-112 (j) (3) (B)[1] because the trial [318 Conn. 573] court allegedly relied on conduct not within the scope of the court-ordered specific steps when concluding that the respondent failed to rehabilitate, that there was insufficient evidence to support a finding that he had failed to rehabilitate, and that the trial court unfairly drew an adverse inference from his refusal to submit to a drug test. We reject these claims and affirm the judgment of the Appellate Court.

The following facts, which the trial court found by clear and convincing evidence, and procedural history are relevant to the resolution of this case. The respondent is the biological father of Shane, who was one day shy of his third birthday when the respondent's parental rights were terminated on April 30, 2013. Three days after Shane was born, the Department of Children and Families (department) responded to a report that Shane's mother[2] was homeless and refused to check in to a shelter. Approximately one month later, on June 8, 2010, police responded to a report of domestic abuse between the respondent and Shane's mother. The respondent refused to give Shane's car seat base to Shane's mother and physically moved her out of his way. The respondent then got into his car, at which point Shane's mother jumped on top of the respondent's car. The respondent started to drive away and caused Shane's mother to fall to the ground. As a result of this incident, both the respondent and Shane's mother were charged with breach of the peace and a protective order was issued between the two.

On August 23, 2010, the commissioner filed a petition of neglect based, in part, on the respondent's history of substance abuse, the history of violence between the respondent and Shane's mother and their recent cohabitation despite four protective orders against their [318 Conn. 574] doing so, the respondent's unaddressed mental health issues, and the fact that Shane was only three months old at the time and was incapable of protecting himself against violence. At that time, the department referred the respondent to Radiance Innovative Services (Radiance) for parenting education and to the Alcohol and Drug Rehabilitation Center for substance abuse evaluation and counseling.

The respondent participated in a clinical assessment at Radiance on September 26, 2010. After that assessment, he was diagnosed with " adjustment disorder with mixed anxiety and depressed mood, [attention deficit hyperactivity disorder] by history and cannabis abuse by history." Radiance staff recommended that the ...


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