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In re James O.

Supreme Court of Connecticut

August 12, 2016

IN RE JAMES O., JR., ET AL.[*]

          Argued May 5, 2016 [***]

          David J. Reich, for the appellant (respondent mother).

          Frank H. LaMonaca, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, Gregory T. D’Auria, solicitor general, Benjamin Zivyon, assistant attorney general, and Romiesha Briscoe, certified legal intern, for the appellee (petitioner).

          Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js. [**]

          OPINION

          ROGERS, C. J.

         The sole issue in this certified appeal is whether the trial court made an improper comparison between the respondent mother, Marjorie H., and Paula M., the therapeutic foster mother of the respondent’s minor children, James O., Jr., and Jolene O., during the adjudicative phase of its judgment terminating the respondent’s parental rights.[1] The respondent[2] appeals from the judgment of the Appellate Court affirming the trial court’s decision to terminate her parental rights as to James and Jolene, and to appoint the petitioner, the Commissioner of Children and Families, as their statutory parent. In re James O., 160 Conn.App. 506, 508, 127 A.3d 375 (2015). The respondent claims that the Appellate Court improperly affirmed the trial court’s judgment terminating her parental rights pursuant to General Statutes (Rev. to 2013) § 17a-112 (j) (3) (B)[3]because the trial court engaged in an improper comparison between the parenting abilities of the respondent and those of Paula M. to support the court’s conclusion that the respondent had failed to reach a sufficient level of personal rehabilitation. We disagree 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 appeal. During the spring of 2011, staff at James’ school became concerned with the fact that James, then seven years old, was making suicidal and homicidal statements and was physically harming himself. The school staff attempted to work with the respondent to secure a psychological evaluation and appropriate treatment for James.

         Around the same time, James’ therapist reported that James disclosed to her that he ‘‘had a secret, that he [heard] voices, and that he hurts himself at home.’’ The therapist also recommended that James receive a psychological evaluation, but the respondent refused to allow an evaluation unless the school paid for both children to be evaluated. The therapist did not believe that the respondent grasped the seriousness of James’ condition.

         School staff also referred James for Intensive In-Home Child and Adolescent Services (in-home services). The respondent refused to allow the services in her home. The respondent removed the children from the school, intending to homeschool them, claiming that James had psychotic episodes only at school and would behave normally at home. During 2011, the children’s school made a referral for both children to the Department of Children and Families (department).

         On June 9, 2011, the petitioner filed neglect petitions and sought and received an order of temporary custody as to both children based on the children’s exposure to substance abuse and domestic violence, evidence of

         James’ serious mental health issues, the failure of both parents; see footnote 2 of this opinion; to follow through with recommended services for both children, and the withdrawal of the children from school and the resulting lack of visibility in the community. The petitioner included as an additional ground educational neglect arising from the children having missed thirty days of school.

         At the time of their removal from the respondent’s custody, both children displayed highly disturbing behaviors. After removal, outside the presence of his parents, James disclosed to Danbury Hospital staff that he was hearing voices and that his head was telling him to do things. James threatened to harm another child in his first foster home, stating that he would kill and eat the child. Jolene, then six years old, displayed sexu-alized behavior including frequent public masturbation, talk about sex, and attempts to engage other children, including her brother, in inappropriate sexual acts. Based on Jolene’s conduct, her first foster mother questioned whether Jolene had a history of sexual abuse.

         Despite Jolene’s behavior, the respondent and the department reached an agreement whereby the order of temporary custody would remain in effect for James, who was to be hospitalized at Yale-New Haven Hospital for psychiatric treatment, while the order would dissolve for Jolene on June 23, 2011, upon the condition that the respondent would take Jolene to therapy. On June 24, 2011, during her therapy in-take interview, Jolene disclosed to the therapist that her father had physically abused her and inappropriately touched her. The department invoked a ninety-six hour hold and removed Jolene from the respondent’s custody for the second time.

         While at Yale-New Haven Hospital, James continued to make suicidal statements and homicidal statements about killing and eating other children. The respondent attributed his conducttoa cartoon hewatched on television. The hospital staff also reported bizarre interactions between James and Jolene. They observed that the parents did not set appropriate limits on the children’s behavior.

         The department placed James and Jolene in a Safe Home placement, which would provide more stability, allow the children to receive mental health services directly at the facility, and allow the department to more directly assess their needs. While the children were at the Safe Home, the department determined that the children would need a family that would understand and be able to handle their ongoing behavioral issues. James was still having suicidal ideation, had a tendency to fixate, and had a fragile emotional state. In addition to sexual behavior, Jolene was reluctant to bathe, was very hyperactive and aggressive, cursed and made threats to others. She also exhibited excessive animal behaviors, at times walking on all fours and making animal noises, and had a skewed sense of reality. Safe Home staff described her ‘‘as one of the most traumatized children they have seen.’’

         The department determined that the children needed to be placed in a therapeutic foster home with a care-giver who could understand and manage their behaviors and provide more intensive therapeutic support. In October, 2011, the department placed the children with Paula M., a licensed therapeutic foster care provider. The trial court described Paula M. as ‘‘part of a team that includes [the department], the children’s therapists, and Wheeler Clinic . . . .’’ Paula M. met with the children’s therapists weekly, attended special education planning and placement meetings, informed the children’s therapists of issues that arose with the children, and helped to implement at home what the children learned in therapy, such as specific coping skills when they became anxious. Paula M. also worked with the in-home service providers in the home twice weekly, once with James and asecond time without the children present to train her to work with James.

         Beginning in October, 2011, Jolene was referred for treatment to the Child Abuse Treatment Services Program at Klingberg Family Centers. That program uses trauma focused cognitive behavioral therapy to assist children who have experienced physical or sexual abuse or have witnessed domestic violence. At the time of the referral, the therapists were not able to begin trauma focused cognitive behavioral therapy with Jolene because the respondent refused to give her consent.

         In February, 2012, both children separately made disclosures of sexual abuse to Paula M. Using the coping skills helearned in therapy, James wrotea narrative that included numerous explicit descriptions of a variety of sexual contact involving James, Jolene, and their parents. While attending church with Paula M., Jolene asked for paper and a pencil and then drew figures of what looked like a child and an adult, including one that suggested sexual activity between the two figures. Paula M., in her capacity as a mandatory reporter, provided a copy of Jolene’s drawings to the department. Jolene subsequently disclosed to her therapist that the drawings depicted her abuse.

         On June 19, 2012, after the trial court had already taken evidence in the contested neglect petitions over several days, the respondent and the children’s father entered nolo contendere pleas to neglect. The court adjudicated the children neglected and committed them to the custody of the petitioner.

         Because of Jolene’s commitment to the petitioner’s custody, she was able to begin trauma focused cognitive behavioral therapy. The goal of her therapy was treat- ment of the symptoms of trauma and abuse, rather than investigation of alleged sexual abuse. Jolene was diagnosed with post-traumatic stress disorder (PTSD). By June, 2013, Jolene exhibited a successful reduction in trauma symptoms, developed coping and relaxation skills, and, as a result, was successfully discharged from the trauma focused cognitive behavioral therapy program.

         James also exhibited a marked improvement to his therapists. At the time of his initial commitment, James presented with suicidal ideation, hypervigilance, high anxiety, frequent tantrums, a great deal of fear, difficulty sleeping, and paranoia. He was diagnosed with PTSD and autism. By the time his most recent therapist was assigned to him in June, 2013, he was no longer presenting with suicidal ideations and his anxiety had decreased significantly. James continued to exhibit issues with boundaries and social skills, which caused behavioral issues for him at school. James’ therapist noted that he required the lessons and skills he was taught in therapy to be mirrored in the parenting he received at home, with a caregiver who is firm, but also very calm, warm, and supportive of him.

         At the time that the respondent entered her nolo contendere pleas to neglect, the respondent agreed to specific steps to facilitate reunification with James and Jolene, including attending individual therapy for the purpose of gaining insight into domestic violence and its impact on the children, improving her communication skills, learning how to problem solve without escalating to violence, and ...


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