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In re Luis N.

Court of Appeals of Connecticut

July 27, 2017

IN RE LUIS N. ET AL.[*]

          Argued May 31, 2017

         Procedural History

         Amended petitions by the Commissioner of Children and Families to terminate the respondents' parental rights as to their minor children, brought to the Superior Court in the judicial district of Middlesex, Child Protection Session at Middletown, where the court, Rubinow, J., denied the respondents' motion to present child testimony; thereafter, the matter was tried to the court; judgments terminating the respondents' parental rights, from which the respondent father appealed to this court. Affirmed.

          Albert J. Oneto IV, assigned counsel, for the appellant (respondent father).

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

          Lavine, Prescott and Harper, Js.

         Syllabus

         The respondent father appealed to this court from the judgments of the trial court terminating his parental rights with respect to his two minor children. In response to a motion filed by the father seeking to have the children, who were six and seven years old at the time, testify at the termination trial, the court ruled that, in lieu of testimony, it would invite the children to the courthouse so that they would have an opportunity to get to know the court and observe the courtroom, and to understand that the court would be deciding the case, and all counsel agreed to the procedure outlined by the court for the meeting. The court made no inquiry of the children during the visit, during which one of the children spontaneously stated that she would be willing to stay with her foster mother or go back to her parents, and during which the children's guardian ad litem and a visitation supervisor for the Department of Children and Families were present. Following the meeting, the court stated on the record what had transpired, and it had the guardian ad litem make a statement regarding comments of the children during the meeting. Held:

         1. The respondent father could not prevail on his unpreserved claim that the trial court deprived him of a fair trial by meeting with the children ex parte, allowing a department visitation supervisor to attend the meeting, and failing to make a record of its observations of the children: although the record was adequate for review, and the claim was of constitutional magnitude and reviewable under State v. Golding (213 Conn. 233), even if the trial court's ex parte meeting violated the father's right to a fair trial, any error was harmless, as the father did not challenge the court's statutory findings, in support of the termination judgments, concerning the reasonable efforts to reunify the father with his children, the fact that he was unable and unwilling to benefit from reunification efforts, his failure to achieve a sufficient degree of personal rehabilitation as required by statute, and the best interests of the children; moreover, although the father did not have the opportunity to cross-examine the children and the department visitation supervisor, the court stated on the record immediately after meeting with the children what had transpired during the meeting and inquired of the father and others whether they wanted further explanation, which was declined by counsel, and the court instructed the guardian ad litem to report what had transpired at the meeting, including the spontaneous comment made by one of the children that was repeated by the department visitation supervisor; furthermore, the father could not prevail under the plain error doctrine given his failure to challenge the factual basis of the judgments terminating his parental rights, and to reverse the judgments under these circumstances could undermine public confidence in the integrity of the judicial system.

         2. The respondent father could not prevail on his claim that the trial court erred in failing to declare a mistrial, sua sponte, after it held an ex parte meeting with the children in the presence of the department visitation supervisor and allegedly drew evidentiary conclusions from its observation of the children; the father was aware of and agreed to the court's ex parte meeting with the children, there was nothing in the record to support the appearance of impartiality or bias on the part of the trial court due to the presence of the department visitation supervisor, and, because the father's counsel did not object or ask the court to recuse itself or to declare a mistrial when the court informed the parties about the supervisor's presence, the father could not now raise a claim that was not raised before the trial court.

          OPINION

          LAVINE, J.

         The respondent father, S.N., appeals from the judgments of the trial court terminating his parental rights in his son, L.N., and his daughter, M.N.[1] On appeal, the respondent claims that the judgments should be reversed because the court met with the children ex parte in the presence of a Department of Children and Families visitation supervisor, failed to make a record of its observations regarding the children, and failed to declare a mistrial. We affirm the judgments of the trial court.

         I

         A

         The Termination Facts

         In a 120 page memorandum of decision, the trial court, Rubinow, J., made the following findings of fact that are relevant to the termination of parental rights petitions at issue in the present appeal. L.N. was born in July, 2008, and M.N. was born in June, 2009. They came to the attention of the Department of Children and Families (department), in February, 2011, when they were in the custody of their mother, B.F., [2] who was overwhelmed by caring for them. The children remained in her custody until October 11, 2011, when the department removed them pursuant to General Statutes § 17a-101g. On October 21, 2011, the court, Hon. William L. Wollenberg, judge trial referee, sustained the orders of temporary custody in the petitioner, the Commissioner of Children and Families, and ordered specific steps for the respondent to aid in his reunification with the children.

         On August 9, 2012, the court, Frazzini, J., adjudicated the children neglected as to the respondent on the ground that they were exposed to conditions injurious to their well-being.[3] Judge Frazzini ordered the children committed to the custody of the petitioner and issued new specific steps for the respondent to facilitate reunification. See General Statutes § 46b-129. On December 12, 2012, the petitioner filed petitions to terminate the respondent's parental rights in the children. In her amended petitions, the petitioner alleged that the department had made reasonable efforts to locate the respondent and to reunify him with the children, that the respondent was unable or unwilling to benefit from reasonable reunification efforts, that he had failed to achieve personal rehabilitation, and that termination of his parental rights in the children was in their best interests. The trial on the termination petitions was held on approximately sixteen days between November 24, 2014, and August 3, 2016. Judge Rubinow issued a memorandum of decision in which the respondent's parental rights in the children were terminated on November 15, 2016. The court, Olear, J., granted the respondent's application for the appointment of appellate counsel and the waiver of fees. The respondent appealed.

         Judge Rubinow made extensive findings of fact with regard to the respondent, which we summarize for the purposes of the present appeal. The respondent was born in 1981 and was graduated from high school. In 2011, he was employed at a car wash. The respondent had relatively simultaneous relationships with several women that resulted in the births of eight children, some of whom are only a few months apart in age.[4] He is married to T.F., the mother of two of his children: S.N., Jr. (S Jr.) and Y.[5]

         The court found that department personnel met with the respondent on numerous occasions, beginning in February, 2011, [6] when the children were in B.F.'s custody. He agreed to work with the department and take care of the children on some weekends as a way of helping B.F. The department made in-home family preservation services available to the respondent from February through October, 2011, but he never availed himself of the services. In October, 2011, when the children were removed from B.F.'s custody, the respondent proposed that the children move into his parents' home. The department deemed the respondent's plan inappropriate; it involved too many people sharing too few bedrooms.[7]

         Starting in October, 2011, the department provided the respondent with once a week, two hour supervised visits with the children. The department also provided him with behavioral health services to help him comply with his specific steps, in addition to a one-on-one fatherhood education program adjusted to meet his cognitive and reading limitations.[8] In June, 2012, Bruce Freedman, a licensed psychologist, conducted a court-ordered psychological evaluation of the respondent, which included an observation of the respondent's interaction with the children.

         The petitioner filed petitions to terminate the respondent's rights in both of the children on December 12, 2012. In November, 2013, the department decided not to pursue the termination petitions due to the positive feedback it had received from the agencies and individuals who were providing services to the respondent. Instead, the department planned to reunify the respondent with the children by February 10, 2014.[9] The department, therefore, increased the amount of supervised visitation the respondent had with the children with a goal of ending supervision. At the time, L.N. was five years old and M.N. was four.

         Prior to the planned reunification, the respondent was living in a two bedroom apartment with C, his oldest daughter. He planned to sleep in the living room while C and M.N. slept in one of the bedrooms, and L.N. slept in the other bedroom. Although the respondent and T.F. are married, they live apart during the week and spend weekends together along with C, S Jr., Y, and other children for whom T.F. was responsible. Although the respondent wanted his children to live full time in the same household with T.F.'s children, he never obtained an apartment large enough to accommodate them all. Freedman conducted another court-ordered psychological evaluation, which again included an observation of the respondent's interaction with L.N. and M.N.

         The department's reunification plan for the respondent was disrupted, however. In 2011, the respondent had secured employment as a school van driver. On December 10, 2013, the department received a complaint regarding the respondent's conduct while he was working as a school van driver. The department investigated and found that a seventh grader and a tenth grader had reported observing the respondent as he watched inappropriate images on his phone while the van was stopped. When the respondent noticed that the students were watching him, he ‘‘pulled his phone away.'' The respondent denied that he was ‘‘looking at porn, '' but admitted that he frequently looked at pictures of women in lingerie.[10] Despite this incident, the department continued its reunification plan for the respondent.

         The court found that the reunification plan was interrupted again on February 7, 2014, when M.N. disclosed that her half brother S Jr., who was six years old at the time, had sexually molested her. B.F. and M.N.'s foster mother both reported the alleged abuse to the department. The alleged abuse occurred in the respondent's apartment when he left M.N. and S Jr. unattended while he was in the bathroom, possibly showering. The court found that M.N. credibly had reported the details of the sexual abuse during therapy. S Jr. had sexually touched M.N.'s genitals, exposed his own genitals, and stated to M.N. that he wanted to ‘‘plug her'' and have sex with her. The respondent was aware of M.N.'s accusations and discussed the matter with S Jr. Following the conversation, the respondent did not believe that S Jr. had committed the alleged sexual abuse or that hehad made sexually suggestive comments to M.N.[11] The department personnel debated whether the respondent should be reunited with the children or the termination petitions should be pursued. In the fall of 2014, notwithstanding the parenting education and individual coaching that the respondent had received, the respondent lacked a concrete, viable plan to keep M.N. safe when she was visiting with any of his other children, including S Jr. In view of the circumstances, the department elected to forgo reunification and to proceed with the termination of parental rights petitions that had been filed in 2012.

         In its memorandum of decision, the court set forth the elements of General Statutes § 17a-112 (j), [12] which the petitioner was required to prove by clear and convincing evidence in order to prevail on her petitions. The court found that the department had made reasonable efforts to maintain consistent contact with the respondent and had made reasonable reunification efforts for the respondent during the adjudicatory period[13] and that the respondent was unable or unwilling to benefit from reunification efforts as contemplated by § 17a-112 (j) (1).[14]

         The court further found by clear and convincing evidence that the respondent had failed to achieve such degree of personal rehabilitation as would encourage the belief that, within a reasonable time, considering the ages and specialized needs of the children, he could assume a responsible position in their lives. The court made specific findings of fact related to the statutory requirements.

         In 2012, Freedman found that the respondent had significant difficulty interacting with L.N. and M.N., but by late 2013, the respondent's parenting techniques had improved considerably. The respondent, however, still showed some social avoidance, shyness, and insecurity in his reading skills. Freedman was more concerned, however, that the respondent had fathered many children, some of whom were exactly the same age, and the respondent did not know their birth dates. He also did not know the name of the school C attended. Freed-man had serious concerns about the respondent's ability to supervise and emotionally support his progeny, especially if the respondent's dream of blending his families came to fruition.

         Despite all of the parent education services that the respondent had received, the court found that he did not appreciate the problems he faced supporting eight children and finding time to spend with each of them. He had failed to achieve any meaningful degree of insight into L.N.'s and M.N.'s specialized needs. Without such insight, the respondent did not have the ability to prevent M.N. from again being exposed to S Jr.'s sexual behavior, to manage the sibling rivalry attendant to the long-term reunification of L.N. and M.N. with the respondent's other children and to manage the additional stress presented by T.F.'s need to care for her young twins.

         To further support its conclusion that the respondent had failed to achieve the requisite degree of rehabilitation required by § 17a-112 (j) (3) (B) (i), the court examined the nature and extent of the respondent's compliance with the specific steps ordered for him under § 46b-129. In general, the court found that the respondent had only facially complied with a number of the steps. His mere attendance at educational programs and his cooperation with service providers did not support the conclusion that he had achieved any degree of personal rehabilitation that encouraged the belief that, within a reasonable time, considering the ages of the children and their special needs, he could assume a responsible position in their lives.[15] Although the respondent cooperated with the department, he had failed to make measurable progress toward the fundamental treatment goal of being able to provide a safe and nurturing environment for the children. The court concluded that the petitioner had met her burden of proving by clear and convincing evidence that the respondent had failed to achieve rehabilitation within the meaning of a § 17a-112 (j) (3) (B) (i).

         The trial court also made the following findings, as required by § 17a-112 (k). The reunification services the department provided to the respondent and the children were timely and appropriate.[16] The respondent, however, was not able to improve his ability to serve as a safe, effective parent to the children pursuant to the specific steps ordered for him. L.N. was three years old and M.N. was two at the time the order of temporary custody entered; L.N. was eight years old and M.N. was seven at the time the respondent's parental rights in them were terminated.

         The court found that the children are bonded to one another and know that the respondent is their biological father, even though they have lived in foster care since October, 2011. The children have no memory of their time with the respondent prior to the time they were removed from B.F.'s care; their memories of the respondent derive from their supervised visits with him. The children are bonded to the respondent and have a positive relationship with T.F. Although the children enjoy the time they spend with the respondent, they do not look to him for emotional support.

         The children were placed with their foster mother, M.F., in October, 2011, and they have close emotional ties to her. They also are bonded to M.F.'s two biological children and her domestic partner, H.B., on whom they rely. H.B. works as a public safety officer and his schedule permits him to transport the children to services when M.F. is working as a certified medical technician.

         The court found that although the respondent has limited financial resources, his economic circumstances have not prevented him from maintaining a meaningful relationship with the children. He also was not ‘‘prevented from maintaining a meaningful relationship with the [children] by the unreasonable act or conduct of the other parent of the [children], or the unreasonable act of any other person . . . .'' General Statutes § 17a-112 (k) (7). The respondent has benefit-ted from subsidized housing services. Despite his criminal history, the respondent has held lawful employment, but he lost his position as a school van driver because he was looking at inappropriate material on his phone in the presence of schoolchildren. The court found that that misconduct was inconsistent with the role of an adult responsible for the safe transportation of other people's children. The respondent's decisions about his personal life and his inability or unwillingness to benefit from reunification efforts, not economic factors, impeded his ability to develop a meaningful relationship with the children.

         The court responded to the respondent's argument that M.F. had impeded his relationship with the children due to her unwillingness or inability to attend various counseling sessions or to provide the children with consistent attendance at counseling. The court did not condone M.F.'s inconsistency in transporting the children to counseling, but it found that her conduct did not prevent the respondent from maintaining a meaningful relationship with them. According to Sam Christodlous, the children's guardian ad litem, ...


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