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In re Danyellah S.-C.

Court of Appeals of Connecticut

August 2, 2016

IN RE DANYELLAH S.-C. ET AL.[*]

          Argued May 9, 2016

         Appeal from Superior Court, judicial district of New London, Child Protection Session at Waterford, Driscoll, J.

          Matthew C. Eagan, assigned counsel, with whom was Michael S. Taylor, assigned counsel, for the appellant (respondent mother).

          Daniel M. Salton, 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).

          Ellin M. Grenger, for the minor children.

          Beach, Sheldon and Gruendel, Js.

          OPINION

          GRUENDEL, J.

         The respondent mother appeals from the judgments of the trial court terminating her parental rights with respect to her four minor children.[1] On appeal, the respondent claims that the court improperly denied her midtrial request to remove her court-appointed counsel.[2] We disagree and, accordingly, affirm the judgments of the trial court.

         In its oral memorandum of decision, the court found the following facts. The respondent is the mother of four minor children. Prior to the birth of their first child, both the respondent and the father "were involved with the Department of Children and Families (department). . . . [The respondent] was the subject of ten department referrals as a child. [The respondent] and the father began their troubled relationship in 2002. The department has been involved with them since 2004 for referrals for [their] children's exposure to domestic violence, substance abuse, and criminal activity, as well as inadequate supervision and mental health concerns.

         "On May 20, 2013, the [petitioner, the Commissioner of Children and Families] filed neglect petitions on behalf of [the minor children] for the above noted concerns .... On March 20, 2014, [the respondent] filed a plea of nolo contendere, and the father failed to appear. The children were adjudicated neglected and placed under protective supervision for six months in [the respondent's] custody. Specific steps were set for [the respondent]. . . . The steps were designed to ameliorate the department's concerns . . . and to allow for family integrity.

         "On March 21, 2014, in keeping with her specific steps, [the respondent] was referred to the intensive family preservation program, an in-home service which was essential. [The respondent] missed two consecutive [department] appointments for home visits to discuss intake to the program. The intensive family preservation worker and the department made an unannounced home visit with [the respondent] and were able to schedule an intake appointment for the program. [The respondent] was not home for the scheduled appointment and was nonresponsive to subsequent efforts to engage her in this vital service.

         "Meanwhile, the father, in contravention to his specific steps to maintain sobriety, tested positive for cocaine .... He was referred to a higher level of drug treatment but was incarcerated on April 28, 2014. . . . On May 7, 2014, the [petitioner] filed a motion to open and modify disposition seeking commitment of the children. On May 23, 2014, neither parent appeared in court, and the motion was granted. The children were committed to the [custody of the petitioner] and have remained committed since that date. [The respondent] arrived late at court and claimed no knowledge as to the children's location. The children were located, secured and . . . have remained in the department's care since [that time].

         "Specific steps for [the respondent and the father] remained in effect [that] required them in part to advise the department of potential family placement resources. [Their] mutual judgment and concern for their children's well-being were demonstrated by their joint nomination of a paternal uncle as a custodial resource [who] was disqualified shortly thereafter by his incarceration on narcotics charges.

         "Following the commitment, both parents were given reunification steps to follow, which included the responsibility to maintain contact with [the department], to cooperate with individual counseling and substance abuse evaluation and treatment, to remain sober, to obtain a lawful income and housing, to avoid criminal activity and to visit with the children. Following the removal of the children, [the respondent] disappeared. She resurfaced in an administrative case review meeting held at [the department two months later] on July 23, 2014 ... . [The respondent] next came to the department's attention when she was incarcerated in Connecticut in October of 2014 on drug related charges. Substance abuse had been an area of significant concern for [the respondent]. [She] reported having prescriptions for multifarious prescription pain killers and thwarted the department's efforts to establish the need for and the credibility of those claims. . . . [The respondent] agreed to [substance abuse] testing, yet never submitted to a test. Her excuses were myriad, but in essence amounted to an inability to get to [the] testing. . . . [The respondent] still has not submitted to substance abuse testing and treatment of an adequate nature. . . .

         "[The respondent] has no independent stable housing. She is dependent upon the charity of a friend for her housing. She has no identified income. Most significantly, however, is the fact that [the respondent] has only visited with her children two times since they were committed to the department. She does not contact the children through authorized channels. She knows the foster mother, as it is a relative foster placement, and does not contact the children through the foster parent. . . .

         "Dr. [Kelly F.] Rogers, [the court-appointed psychological evaluator] noted that [the respondent] has a passive-aggressive streak which expresses itself indirectly in negativism, sarcasm and passive aggression that usually served to worsen her associations, particularly those with authority figures, and that this is a strong pattern quite resistant to change. [The respondent] continually appears late for meetings or does not come at all. She does not cooperate with the department [workers] in terms of responding to them. This is all in keeping with [Rogers'] finding that [the respondent] resists authority figures. . . . [Rogers] opined that she may meet the criteria for several personality disorders, but at the least a personality disorder not otherwise specified with histrionic borderline narcissistic and passive aggressive traits. . . .

         "[The respondent] has not cooperated with . . . treatment, and the court finds that given her failure to visit [the minor children], her arrest on narcotics charges, her failure to establish a stable income and housing and her lack of cooperation with counseling, the department has established . . . that it made reasonable efforts to reunify with [the respondent], that [the respondent] is unwilling or unable to benefit from those efforts, that her children were previously found to [have been] neglected and that she has failed to achieve the degree of personal rehabilitation that would encourage the belief that within a reasonable time she could assume a responsible position in the lives of her children. Her two oldest children had special needs, and were in therapy and were failing in school while in the care of [the respondent]. They have improved dramatically since removal from [the respondent's] care. The court has no reasons to believe that these improvements would remain if returned to [the respondent] at any time. . . .

         "With respect to [the issue of] abandonment . . . [the respondent] responded to the commitment of her children by disappearing for a two month period. Since that date, she has not maintained contact with the children and has maintained irregular and inadequate contact with the department. Most importantly, she has visited her children only two times. Despite being noted to be in the area several times, she has not attempted to visit her children through permitted channels. . . .

         "[I]mmediately prior to their commitment, the oldest children were exhibiting behavioral and serious educational deficiencies mostly rooted in their extensive truancy. Since being removed from [the respondent's] custody . . . the children have blossomed in the care of their foster mother. They are doing well academically. They attend school regularly. They are not having behavioral issues and they are both in counseling and thriving. . . .

         "The court finds that [the respondent] abandoned them and has demonstrated little or no interest in the children. She certainly is not in a position to provide for their growth, development, well-being, nor is she capable of providing continuity and stability." The court thus found by clear and convincing evidence that termination of the respondent's parental rights was in the best interest of the children. Accordingly, the court rendered judgments terminating her parental rights pursuant to § 17a-112 (J).

         The respondent does not contest any of those factual findings in this appeal. Rather, her appeal is centered entirely on an exchange that transpired in the middle of trial regarding the potential testimony of her father, J. Approximately halfway through the evidentiary stage of that proceeding, the court took a brief recess at the request of the respondent. When trial resumed, the following colloquy transpired:

"The Court: Good afternoon. The court notes the return of those previously present. And there is a new gentleman sitting in ...

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