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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 [**]

         Syllabus

         The respondent mother appealed to this court from the judgments of the trial court terminating her parental rights with respect to her two minor children. In response to a motion filed by the mother 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 the respondent, 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 mother could not prevail on her unpreserved claim that the trial court violated her right to due process by improperly considering evidence that it had gleaned from its ex parte meeting with the children in terminating her parental rights: although the record was adequate for review, and the claim was of constitutional magnitude and reviewable under State v. Golding (213 Conn. 233), any claimed error was harmless, as the mother failed to identify any evidence in the court's memorandum of decision that was not presented during the termination trial and to identify any facts found by the court, in either the adjudicatory or dispositional phase of the trial, that were clearly erroneous; moreover, the mother failed to demonstrate that it was plain error for the court to consider evidence gleaned from the ex parte meeting with the children, as she did not challenge the court's findings regarding the reasonable efforts to reunify her with her children and her failure to achieve a sufficient degree of personal rehabilitation, and did not demonstrate any harm and that the failure to reverse the judgments terminating her parental rights would result in manifest injustice.

         2. There was no merit to the respondent mother's claim that the trial court violated her right to due process by failing to timely canvass her pursuant to In re Yasiel R. (317 Conn. 773), which requires a trial court to canvass a parent who does not consent to the termination of parental rights prior to the start of the termination trial in order to ensure the overall fairness of the termination process: although the mother claimed that the trial court's canvass was not timely because it did not occur at the start of trial and was done after the termination trial had begun, because In re Yasiel R. was not decided until after the commencement of the mother's termination trial, the court could not possibly have canvassed her in accordance with that case prior to trial, and there was no dispute that the court did canvass the mother in accord with In re Yasiel R. during the course of the termination trial; moreover, the mother's claim that the canvass was defective because the court did not inform her that it had to be administered before trial started was unavailing, as the required canvass did not exist before the commencement of the mother's termination trial.

         3. The trial court's finding that the respondent mother had failed to achieve a sufficient degree of personal rehabilitation as would encourage the belief that, within a reasonable time, considering the age and needs of the children, she could assume a responsible position in their lives was supported by clear and convincing evidence; the court's memorandum of decision contained a detailed history of the mother's pattern of substance abuse, including her use of illegal drugs during the termination proceedings despite the specific step to refrain from that activity, the court found that the mother did not appreciate the negative effect that her use of marijuana had on her capacity to meet the needs of the children or to keep them safe, and it acknowledged the mother's love for her children and her desire for reunification but found that, although the mother had achieved a period of sobriety for approximately six months prior to the end of the termination trial, her sobriety was too fragile and untested to lead to the conclusion that she would be able to tend to the special needs of the children within a reasonable time, and that the mother's desires, however sincere, were insufficient to sustain the children and to provide them with a safe, secure, and permanent environment. 4. The respondent mother could not prevail on her claim that the trial court improperly had concluded that the termination of her parental rights was in the best interests of the children, the mother having failed to identify any factual findings of the court that were clearly erroneous; that court was constrained to conclude, given the ages and stages of development of the children and their particular educational and emotional needs, that allowing more time for the mother to become able and willing to provide safe, reliable, and attentive care for the children would unreasonably relegate the children's best interests to a level of uncertainty, without a valid basis for determining that reunification could be achieved within a reasonable time, and the court properly concluded that to delay termination of the mother's parental rights would unduly interfere with the children's access to permanency that would enhance their opportunities and potential for healthy development.

         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 mother appealed to this court. Affirmed.

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

          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.

          OPINION

          LAVINE, J.

         The respondent mother, B.F., appeals from the judgments of the trial court terminating her parental rights in her son, L.N., and daughter, M.N.[1] On appeal, the respondent claims that the court (1) violated her right to due process by meeting with the children ex parte, (2) failed timely to canvass her pursuant to In re Yasiel R., [2] (3) erred by concluding that she had failed to rehabilitate to the degree that she could not be restored as a responsible parent within a reasonable time, and (4) erred by finding that it was in the best interests of the children to terminate her parental rights in them. We affirm the judgments of the trial court.

         In a detailed, 120 page memorandum of decision, the trial court, Rubinow, J., made the following findings of fact that are relevant to the issues in the present appeal. L.N., who was born in July, 2008, and M.N., who was born in June, 2009, came to the attention of the Department of Children and Families (department) in February, 2011. The children resided with the respondent, but not their father, S.N., who never married the respondent. The respondent was overwhelmed caring for the children, but they 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 and ordered specific steps for the respondent to assist her reunification with the children.

         On May 31, 2012, the court, Frazzini, J., adjudicated the children neglected as to the respondent[3] on the ground that they were exposed to conditions injurious to their well-being.[4] The court ordered the children committed to the custody of the petitioner, the Commissioner of Children and Families, and ordered 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 and amended the petitions on September 6, 2013. The petitioner alleged that the department had made reasonable efforts to locate the respondent and reunify her with the children but that she was unable or unwilling to benefit from reasonable reunification efforts. The petitions also alleged that the respondent had failed to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the ages and needs of the children, she could assume a responsible position in their lives, and that termination of her parental rights was in the best interests of the children.

         Trial on the termination petitions commenced on November 24, 2014, and continued on approximately sixteen days until August 3, 2016. The court heard from approximately nineteen witnesses. On January 15, 2016, the court appointed Sam Christodlous, an attorney, to serve as guardian ad litem for the children. On January 29, 2016, Judge Rubinow canvassed the respondent in accordance with In re Yasiel R., 317 Conn. 773, 795, 120 A.3d 1188 (2015).

         The court found the following facts with respect to the respondent. She was born in 1989 and was herself removed from her mother's care due to neglect. Her grandmother adopted her when the respondent was ten years old. Her family history is significant for mental health issues and alcohol and drug abuse. As a child, the respondent was beaten, raped, and subjected to domestic violence; as an adult, sheis troubled by memories of those incidents. In her youth, the respondent suffered from seizures and received mental health counseling. The respondent left high school in the tenth grade and has held occasional and temporary employment at a video game store, an election center, and a barber shop. She found full-time employment at a laundry service in October, 2013.

         After the department became involved with the family, it referred the respondent for in-home services to address L.N.'s delayed speech and M.N.'s unspecified developmental issues. The respondent also was referred to parenting classes with case management services. Over the next several months, the respondent's participation in those services was inconsistent. Moreover, her mental health deteriorated, she was isolated in her apartment, she and the children were unkempt, and she failed to respond to the children's cues for attention. The respondent had difficulty paying her rent, and a third party with a child was living in her home. The in-home service providers recommended that the respondent receive individual therapy and medication management services.

         The respondent was referred to Valarie Williams, a licensed psychologist, for a clinical assessment. The respondent's mental health history included bipolar disorder, depression, and post-traumatic stress disorder. She had a history of insomnia, crying spells, poor concentration, mood swings, irritability, aggressive behavior, and poor impulse control. She was taking the medication Klonopin. The respondent had a limited circle of friends and was on probation for robbery in the second degree. Williams diagnosed the respondent with major depressive disorder and post-traumatic stress disorder, and referred her to a psychiatrist.

         The court found that the respondent had a history of illegal drug use that began when she was thirteen years old. She had a pattern of using illegal drugs, participating in treatment, remaining drug free for a time, and relapsing, a pattern that persisted during the termination proceedings and when the respondent was caring for her youngest child, E.T. The department referred the respondent to Catholic Charities' Institute for the Hispanic Family for drug screening and evaluation. When the respondent was evicted from her home in the fall of 2011, the department removed the children from her care. Although the respondent was homeless for months, she continued to receive department sponsored services and had supervised visits with the children twice a week.

         Throughout the first six months of 2012, the respondent tested positive for marijuana and cocaine. Williams discharged the respondent from individual counseling in June, 2012, because she failed to attend scheduled therapy sessions and to consult a psychiatrist, as recommended. In June, 2012, Bruce Freedman, a licensed psychologist, conducted a court-ordered psychological evaluation of the respondent, which included an assessment of her interaction with the children. Freedman determined that the respondent's intelligence is at the low end of the average range. In September, 2012, the respondent was referred to Community Renewal Team to address her mood instability, post-traumatic stress disorder, and marijuana use.

         By December, 2012, the respondent was living with V.G., a man with a criminal history involving crimes of violence, including risk of injury to a child. V.G. physically abused the respondent. The department recommended that the respondent engage in domestic violence prevention services, but she refused. In January, 2013, the respondent was evicted from the apartment she shared with V.G. and continued to test positive for marijuana use. Community Renewal Team discharged her from its services and referred her to the Institute of Living. The court found no evidence that the respondent availed herself of the referral to the Institute of Living.

         During the summer of 2013, the respondent was enrolled in anger management, domestic violence, and parent education programs at the Family Intervention Center. By September, 2013, she had attended a three day per week, three hour per day program where her substance abuse issues were to have been addressed. The respondent, however, did not complete the domestic violence and anger management programs, nor did she engage in the follow-up after substance-abuse relapse prevention program or individual counseling that were recommended to her.[5]

         The respondent had been employed by a salon to cut hair, but in October, 2013, with help from her cousin, she obtained employment at a laundry service in another community, where a man, L.T., was employed. The respondent worked from 7 a.m. until 3 p.m., Monday through Thursday, and therefore she claimed that she was unable to participate in services offered by the department. In late December, 2013, Freedman conducted a second court-ordered psychological evaluation of the respondent, which also included an assessment of her interaction with the children. As of January, 2014, the respondent was still using illegal drugs and admitted to smoking seven to eight blunts per day.

         In March, 2014, the respondent moved to the community where the laundry service was located to live with L.T.[6] in a two bedroom apartment she had obtained with the assistance of a cousin and her grandmother. Although she was no longer receiving counseling, the department provided her with supervised visits with the children.

         In August, 2014, the respondent became pregnant with her third child. In response to advice she received from her prenatal care provider, the respondent went to Perspectives Counseling Center and stated that she needed counseling. She reported a history of sexual abuse, physical abuse, domestic violence, counseling, psychotropic medication, and criminal activity. She also reported that she was in a domestic relationship with L.T., whom she described as being good and supportive. Perspectives Counseling Center diagnosed her with a major depressive disorder and recommended that she engage in individual and group therapy. Despite telling her service provider and the department that she had stopped using illegal drugs as of January, 2014, the court found that drug tests indicated that in November, 2014, while she was pregnant, the respondent tested positive for marijuana use. She tested positive for cocaine use in December, 2014, and marijuana use in January, 2015.

         In February, 2015, the respondent returned to her hometown with L.T., after she had obtained a subsidized two bedroom apartment. The department referred the respondent to the Wheeler Clinic for substance abuse and mental health evaluations. Due to her pregnancy, the respondent was put on bed rest in March, 2015, and did not engage the recommended services at Wheeler Clinic.

         In April, 2015, the respondent gave birth to a son, E.T. Because the respondent used illegal drugs during her pregnancy, the department became involved with the ‘‘new'' family and filed a neglect petition on behalf of E.T., who remained in the custody of the respondent and L.T. The respondent's family and L.T.'s family helped care for E.T.

         During the last phase of her pregnancy and after E.T. was born, the department transported L.N. and M.N. to visit the respondent in her home once a week. The court found that, under supervision, the respondent gave appropriate attention to all three of her children. In May, 2015, the department referred the respondent to relapse prevention with Catholic Charities, but she did not utilize those services until November, 2015. On her own initiative, however, the respondent returned to Williams for individual counseling. She admitted that she used cocaine and marijuana in October, 2015, when she was E.T.'s legal guardian. Hair segment analysis on December 21, 2015, demonstrated that the respondent recently had used both cocaine and marijuana. The respondent continued to test positive for cocaine and marijuana in 2016, but her segmented hair analyses conducted on July 28, 2016, demonstrated that she had been drug free for approximately six months.

         By January 13, 2016, L.T. was no longer living with the respondent in her subsidized housing.[7] She claimed, however, that he continued to coparent E.T. On January 14, 2016, pursuant to a motion filed by the petitioner, the court, Woods, J., ordered that E.T. be moved from protective supervision to committed status.

         The respondent had regular supervised visits with the children since they were removed from her home in October, 2011. The court found that the visits were cordial, involving physical activities, watching movies, or using a computer to access child appropriate websites. The respondent always brought food, toys, or an activity to the visits, and neither L.N. nor M.N. wanted her to leave when the visits ended. The respondent knew the location of the school the children attended, but she did not understand the nature or extent of their special education or behavioral health needs. She believed that she could provide adequate parental care for L.N. and M.N., even though she was also responsible for E.T., because the baby slept most of the time.

         In its memorandum of decision, the court set forth the elements of General Statutes § 17a-112 (j), [8] which the petitioner was required to prove by clear and convincing evidence to prevail on the petitions to terminate the respondent's parental rights in L.N. and M.N. The court found by clear and convincing evidence that the department had made reasonable reunification efforts for the respondent during the adjudicatory period[9] and that she was unable or unwilling to benefit from reunification efforts offered by the department.[10]

         The court also found that the petitioner had demonstrated 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 age and specialized needs of the children, she could assume a responsible position in their lives.[11] The respondent's failure to achieve statutory rehabilitation, the court found, was clearly and consistently evident from her pattern of recurrent substance abuse. Although the respondent participated to varying degrees in numerous services and counseling offered, she consistently returned to using cocaine and marijuana after treatment. The court found that the use of such drugs, whether in response to stress or for recreational purposes, was highly inconsistent with a parent's ability to provide safe, reliable, and consistent parenting in order to assume a responsible position in the lives of L.N. and M.N. The respondent's pattern of treatment, abstinence, and relapse was particularly evident from 2011 to 2015, and throughout the termination of parental rights proceedings.

         The court acknowledged that in late 2015, after returning to individual counseling with Williams, the respondent reentered substance abuse treatment at Catholic Charities and at the conclusion of evidence in the termination of parental rights trial, the respondent was no longer using illegal drugs. The evidence was insufficient, however, for the court to conclude that the respondent had acquired the necessary skills to maintain abstinence. Her sobriety at the time was too fragile, too untested, and too unreliable for the court to infer that the respondent had developed the internal resources to ensure that she would put the needs of L.N. and M.N. above her own.

         The court also found that even if, in 2016, the respondent was better able to manage her own life, her progress was modest and had to be viewed in the context of a parent whose children were removed from her care due to her recurrent drug use. The court noted the respondent's return to individual counseling, but also noted her failure to disclose information about her personal and parental instability, which was likely to lead to relapse. The court stated that the respondent had not achieved a degree of insight into her proclivity to relapse when faced with stress, as would encourage the belief that she was even capable of learning to fulfil a responsible role in the lives of L.N. and M.N. The court concluded that even if, by the first half of 2016, the respondent ...


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