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In re Glerisbeth C.

Appellate Court of Connecticut

December 22, 2015

IN RE GLERISBETH C. ET AL. [*]

         Argued September 9, 2015.

Page 918

          Petitions by the Commissioner of Children and Families to terminate the respondents' parental rights with respect to their minor children, brought to the Superior Court in the judicial district of Hartford, Juvenile Matters, and transferred to the judicial district of Middlesex, Child Protection Session at Middletown, where the matter was tried to the court, C. Taylor, J.; judgments terminating the respondents' parental rights, from which the respondent mother appealed to this court.

          SYLLABUS

         The respondent mother appealed to this court from the judgments of the trial court terminating her parental rights with respect to her minor children. The petitioner, the Commissioner of Children and Families, filed separate petitions to terminate the respondent's parental rights on the ground of her failure to rehabilitate, alleging that she had significant mental health issues, substance abuse issues, and a history of domestic violence. A trial on the petitions was held in November, 2014, and a psychologist, S, who had examined the respondent, testified on the basis of her report that the respondent had difficulty understanding reality versus fantasy and that she had reported having hallucinations. Furthermore, a department social worker testified that the respondent's mental health continued to be unstable and erratic at times despite being engaged in therapy twice weekly and receiving twice daily psychotropic medications. Additionally, the social worker testified that, even on medication, the respondent was still having hallucinations and required twice daily mental health assessments. A different department social worker, however, testified that the respondent had not reported having any hallucinations since July, 2012, and that changes in her medication had assisted in resolving that issue. Finally, the respondent testified that she did not understand the reasons that the commissioner had provided to justify terminating her parental rights, and that employees of the Department of Children and Families were abusers. The trial court granted both termination petitions. On appeal, the respondent claimed, for the first time, that the trial court violated her due process rights under the United States constitution by failing to conduct, sua sponte, a hearing as to her competency to stand trial on the termination petitions because reasonable doubt about whether she had a rational and factual understanding of the proceedings against her was raised by the reports and testimony from S and the social workers as to the effects of her mental health problems on her day-to-day life, and by portions of her trial testimony. Held that the trial court's failure to order, sua sponte, a competency evaluation of the respondent did not constitute an abuse of its discretion or a violation of the respondent's due process rights and, therefore, the respondent could not show that a constitutional violation existed and deprived her of a fair trial, as required to prevail on her unpreserved constitutional claim: the respondent's argument that she could not have assisted her counsel in preparation for trial or aid in her own defense was belied by the entirety of the report and testimony of S, which contained no expression of opinion that the respondent was experiencing the most severe symptoms sometimes associated with her mental disorders either at the time of the evaluation or, more importantly, at the time of trial; furthermore, the testimony of the respondent's visiting nurse that the respondent's mental health had stabilized with medication by the time of trial and the record, which revealed that the respondent had not had any hallucinations since July, 2013, contradicted the respondent's claim that, at the time of trial, her mental condition had not been alleviated by any of the medication or services she received; moreover, there was nothing in the respondent's testimony or her other behavior in court that should have prompted the court, sua sponte, to order an investigation or conduct a hearing as to her competency, as she answered all of the questions put to her appropriately and in a manner consistent with her position at trial, and her testimony that she did not understand the commissioner's actions against her evidenced a fundamental disagreement with the commissioner as to her ability to be an effective parent for her children, not a lack of understanding of the nature of the termination proceedings.

         Benjamin M. Wattenmaker, assigned counsel, for the appellant (respondent mother).

         Tammy Nguyen-O'Dowd, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, Gregory T. D'Auria, solicitor general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).

         Deetta C. Roncone, for the minor children.

         Sheldon, Prescott and Flynn, Js. SHELDON, J. In this opinion the other judges concurred.

          OPINION

Page 919

         [162 Conn.App. 275] SHELDON, J.

         In this appeal from the trial court's judgment terminating her parental rights to her two youngest children, Glerisbeth and Jesus, the respondent mother[1] claims

Page 920

that the trial court violated her due process rights under the United States constitution by failing, sua sponte, to conduct a hearing as to her competency to stand trial.[2] We affirm the judgments of the trial court.

         The trial court set forth the following relevant facts and procedural history in its memorandum of decision. The Department of Children and Families (department) first became involved with the respondent's family in October, 2004, when it was notified by Hartford Hospital [162 Conn.App. 276] that the respondent and her newborn son, Jesus, had both tested positive for cocaine. The matter was referred to the department's ongoing services unit.

         On August 30, 2010, the department received another referral about the respondent's family from the Connecticut Children's Medical Center, which reported that Jesus had disclosed to the respondent that his father had sexually abused him. Upon substantiating the allegation of sexual abuse, the department referred this matter to its ongoing services unit as well and implemented a safety plan to ensure that the father would have no further contact with either Jesus or Glerisbeth.

         In November, 2010, the department was informed by one of the respondent's adult daughters that the respondent was allowing the minor children's father to have contact with them. On the basis of that report, the petitioner, the Commissioner of Children and Families (commissioner), took custody of the children pursuant to a ninety-six hour hold.[3] Thereafter, the commissioner [162 Conn.App. 277] filed parallel neglect petitions with respect to the two children. The proceedings so initiated resulted in the issuance of an order of six months' protective supervision with respect to both children.

         On October 18, 2012, the department received another referral regarding the respondent's family from the Village for Children and Families, which reported that there had been a physical altercation between the respondent and her pregnant

Page 921

adult daughter[4] in the presence of Jesus, who had attempted to break it up. On the basis of that report, the commissioner once again took custody of Jesus and Glerisbeth pursuant to a ninety-six hour hold.

         On October 23, 2012, the commissioner filed separate neglect petitions as to the two children, alleging that they had been denied proper care, treatment and attention, physically, educationally or morally, or that they were being permitted to live under conditions injurious to their well-being. That same day, the commissioner sought and obtained an order of temporary custody (OTC) with respect to the two children. Pursuant to the OTC, the trial court issued preliminary specific steps for both parents and found that the department had made reasonable efforts to avoid the need to remove the children from their home.

         On November 2, 2012, the respondent and the children's father appeared before the trial court, which advised them of their rights, confirmed that proper service of process had been made upon them, and appointed counsel to represent them. Both parents agreed that the OTC should be sustained, but entered [162 Conn.App. 278] pro forma denials to the neglect petitions as to Jesus and Glerisbeth. After issuing specific steps for both parents, the court continued both neglect matters for further proceedings.

         On November 29, 2012, the commissioner filed a motion for psychological examination of both parents pursuant to General Statutes § § 45a-717 (d), 46b-129a (1) and 46b-121 (b). The motion was based upon the following allegations: " [t]he history of sexual abuse, the exposure of the children to violence, the previous involvement of the court, the mental health issues of the respondent mother, the bizarre behaviors of the respondent mother and the lack of progress in addressing those issues, despite the provision of services, raises questions about the competency or ability of the respondent parents to care for the[ir] . . . children." The court granted the motion for psychological examination by agreement of the parties.

         On October 29, 2013, approximately one year after the commissioner filed neglect petitions as to Jesus and Glerisbeth, separate petitions were filed to terminate the parental rights of the respondent and the children's father on the ground of failure to rehabilitate. The commissioner based the claim of failure to rehabilitate as to the respondent on what was alleged to be her " significant mental health issues, substance abuse issues and history of domestic violence." On November 26, 2013, the trial court confirmed service of the termination petitions upon the respondent and advised her of her rights in connection with the termination proceedings. Eleven months later, on November 19, 20, and 21, 2014, the termination trial was conducted before Judge Carl Taylor in the Superior Court at Middletown. By memorandum of decision filed March 5, 2015, the court granted both termination petitions. It thereby terminated the parental rights of both parents as to the two minor children and appointed the commissioner to [162 Conn.App. 279] serve as their statutory parent for the purpose of securing an adoptive family or other permanent placement for them. This appeal followed.

         The respondent claims on appeal that the trial court violated her due process rights under the United States constitution ...


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