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In re Elijah C.

Supreme Court of Connecticut

August 9, 2017

IN RE ELIJAH C.[*]

          Argued January 17, 2017

          James P. Sexton, assigned counsel, with whom were Michael S. Taylor, assigned counsel, and, on the brief, Emily Graner Sexton, Matthew C. Eagan and Marina L. Green, assigned counsel, for the appellant (respondent mother).

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

          Dan Barrett, Daniel J. Krisch, and Shira T. Wakschlag filed a brief for the Arc of the United States et al. as amici curiae.

          Joshua Michtom, assistant public defender, filed a brief for the Office of the Chief Public Defender as amicus curiae.

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

         Syllabus

         The respondent mother appealed from the judgment of the Appellate Court, which dismissed her appeal from the trial court's judgment terminating her parental rights with respect to her minor child, E. The trial court found by clear and convincing evidence, as required by statute (§ 17a-112 [j] [1]), that the Department of Children and Families had made reasonable efforts to reunify the respondent and E, and that the respondent was unable to benefit from those efforts. In dismissing the respondent's appeal as moot, the Appellate Court concluded that the respondent had inadequately briefed her claim that the trial court's finding that she was unable to benefit from the department's reunification efforts was clearly erroneous, and, because the trial court's judgment could be sustained on the basis of either that finding or the court's finding that the department had made reasonable reunification efforts, the Appellate Court could afford the respondent no practical relief on appeal. On the granting of certification, the respondent appealed to this court, claiming, inter alia, that the Appellate Court improperly determined that her appeal was moot and that the trial court incorrectly determined that she had been unable to benefit from the department's reunification efforts.

Held:

         1. This court could not conclude that the respondent's challenge to the trial court's finding that she was unable to benefit from the department's reunification services was inadequately briefed in the Appellate Court, and, therefore, that court improperly dismissed the respondent's appeal as moot; although the respondent's argument regarding that finding was not comprehensive, cited no authority apart from the applicable statutes and rules of practice, failed to address certain evidence that strongly supported that finding, and was relegated to the section of her brief contesting the finding regarding whether the department's reunification efforts were reasonable, her claim was reasonably discernable from the record and sufficiently clear to permit the Appellate Court to address it on the merits, in light of the relative simplicity and interdependence of the respondent's briefed claims regarding the trial court's finding regarding the reasonableness of the department's reunification efforts, the impact that the department's alleged reduction of its reunification services had on the success of the respondent's reunification efforts, and the department's failure to provide the reunification services that the trial court previously had determined were reasonable and appropriate in view of the respondent's cognitive deficits.

         2. The respondent could not prevail on her claim that the trial court incorrectly determined that she had been unable to benefit from the department's reunification efforts because, several months before the termination hearing, the department reduced the number of the respondent's weekly visits with E and replaced the agency tasked with supervising one of those weekly visits with an agency whose employees were not trained to work with persons with cognitive disabilities, such as the respondent, and because the department could have done more to identify services that might have assisted her in her reunification efforts: the evidence supported the trial court's finding that that the respondent was unable to benefit from the department's reunification efforts, the trial court having properly relied on the expert opinion testimony of two evaluating psychologists that the respondent's cognitive deficits and psychological conditions were so severe that she could not be left alone with children and that the only way reunification could be achieved was through a program involving around-the-clock supervision of both the respondent and E, which was not available in this state; moreover, this court declined to address the respondent's claim that the department should have looked out of state to find a program that could provide around-the-clock supervision, she having failed to raise that claim in the trial court, and, in any event, the respondent cited no authority to support her claim that reasonable reunification efforts required the department to provide her with in-state or out-of-state around-the-clock supervision.

         The role that the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.), the provisions of which cannot be relied on as a defense in a child neglect or termination of parental rights proceeding, plays in child welfare proceedings, discussed.

         Procedural History

         Petition by the Commissioner of Children and Families to terminate the respondents' parental rights as to their minor child, brought to the Superior Court in the judicial district of Windham, Child Protection Session at Willimantic, and tried to the court, Hon. Francis J. Foley III, judge trial referee, who, exercising the powers of the Superior Court, rendered judgment terminating the respondents' parental rights, from which the respondent mother appealed to the Appellate Court, DiPentima, C. J., and Beach and Flynn, Js., which dismissed the appeal for lack of subject matter jurisdiction, and the respondent mother, on the granting of certification, appealed to this court. Improper form of judgment; judgment directed.

          OPINION

          PALMER J.

         In this certified appeal, the respondent, Marquita C., appeals from the judgment of Appellate Court, which dismissed her appeal from the judgment of the trial court terminating her parental rights as to her son, Elijah C.[1] See In re Elijah C., 164 Conn.App. 518, 519, 137 A.3d 944 (2016). The respondent claims that the Appellate Court incorrectly concluded that she had failed to adequately brief one of the two independent grounds for reversing the judgment of the trial court and, consequently, that her appeal was moot. She further claims that the trial court incorrectly determined, first, that the Department of Children and Families (department) made reasonable efforts to reunify her with Elijah and, second, that she was unable to benefit from those efforts.[2] We agree with the respondent that the Appellate Court improperly dismissed her appeal as moot. We further conclude, however, that the evidence supports the trial court's determination that the respondent was unable to benefit from reunification efforts. Because our resolution of that issue constitutes an independent basis for affirming the trial court's judgment, we need not address the respondent's claim that the trial court incorrectly concluded that the department made reasonable efforts to reunify her with Elijah. We therefore vacate the judgment of the Appellate Court and remand the case to that court with direction to affirm the trial court's judgment.[3]

         The opinion of the Appellate Court sets forth the following relevant facts and procedural history. ‘‘The [trial] court granted the petitioner, the Commissioner of Children and Families, an ex parte order of temporary custody of Elijah shortly after he was born.[4] The petitioner filed a neglect petition on February 21, 2014, on the basis of the doctrine of predictive neglect as a result of the respondent's diminished cognitive abilities.[5] The order granting temporary custody of Elijah was sustained four days later.

         ‘‘The court, Dyer, J., held a neglect trial on September 15, 2014. On October 2, 2014, the court adjudicated Elijah as neglected and ordered his care, custody, and guardianship [be] committed to the petitioner. Additionally, the court ordered the department (1) to contact [the Department of Mental Health and Addiction Services (DMHAS) and the Department of Developmental Services (DDS)] to inquire about additional services for the respondent, (2) to ascertain from those agencies whether a group home existed where the respondent could potentially be reunified with Elijah and receive various forms of instruction, (3) to request the behavioral health center that was providing the respondent with psychotropic medications to conduct a medication management review, and (4) to file a written report with the court addressing various issues.

         ‘‘On November 4, 2014, the petitioner filed a motion for review of the permanency plan seeking to terminate the parental rights of the respondent. Judge Dyer held a trial on January 22, 2015, and, six days later, the court issued its memorandum of decision. After considering the evidence presented, the court concluded that it was in the best interest of Elijah . . . ‘[to afford the respondent] . . . a limited period of additional time to pursue reunification efforts, ' namely, to continue with the services provided by the department. . . . The time period, the court believed, ‘should not exceed six or seven months.' [Accordingly], the court rejected the department's permanency plan of termination of parental rights.

         ‘‘On February 24, 2015, the petitioner filed a petition pursuant to General Statutes § 17a-112[6] to terminate the parental rights of the respondent and Paul Y. . . . On September 8 and 10, 2015, the court, Hon. Francis J. Foley III, judge trial referee, held a hearing on the . . . petition.[7] On September 18, 2015, the court issued a comprehensive memorandum of decision. The court found by clear and convincing evidence that ‘[the department had] made reasonable efforts to reunify [Eliljah] with [the respondent] . . . [and that the respondent was] unable to benefit from reunification services.' Consequently, the court terminated the parental rights of the respondent. . . .

         ‘‘The court's memorandum of decision from the termination hearing sets forth the following facts . . . . Shortly after Elijah was born, the hospital personnel were concerned because the respondent ‘appeared to have cognitive limitations and serious mental health problems (schizophrenia) and . . . was reported to have poor judgment and no insight into parenting.' Thus, the hospital contacted the department, [which] sent a social worker to observe the respondent and Elijah. The social worker concluded that the respondent could not care for Elijah because of the severity of her limitations.

         ‘‘The respondent's lengthy and exceptionally sad involvement in the child welfare system provides . . . context to the present appeal. The respondent was born prematurely, addicted to cocaine and alcohol, and suffered serious medical conditions. In April, 1989, the respondent was placed in foster care with Gwendolyn C. and [Gwendolyn's] . . . husband. In 1993, Gwendolyn and her . . . husband adopted the respondent and another girl unrelated to the respondent. In 1994, the respondent's adoptive parents divorced. Between 1997 and 1999, Gwendolyn adopted three more children.

         ‘‘The respondent's childhood with Gwendolyn was difficult. Under her care, the respondent and the other children were ‘cruel[ly] discipline[d] . . . [by her] making them run up and down stairs, standing them on one leg with their arms outstretched holding a book in each arm, [and] beating [them] with a stick and with a belt.' In July, 2001, just prior to the respondent's thirteenth birthday, Gwendolyn abandoned three of her adoptive children, including the respondent, at the department's Meriden office. Gwendolyn explained that she could no longer care for [them]. All three children were underweight, which lent credence to claims that Gwendolyn routinely withheld food from [them].

         ‘‘After being abandoned by Gwendolyn, the respondent remained in the custody of the petitioner as a committed child for approximately six years. The respondent qualified for postmajority services through [DDS] and [DMHAS]. The department developed a post-majority plan in which both agencies were to provide the respondent with ‘life skills, vocational training, and supportive housing.' The postmajority plan, however, never came to fruition because, prior to her nineteenth birthday, the respondent returned to Gwendolyn's care. The respondent resided with Gwendolyn for the next several years before cohabitating with Paul Y. After the respondent and Paul Y.'s relationship ended, she returned to Gwendolyn's home. Approximately four months later, Elijah was born.

         ‘‘The court's memorandum of decision also detailed the department's efforts to reunite Elijah with the respondent. It noted that the department offered the respondent case management services, three in-home visits per week with a parenting skills component, the opportunity to attend Elijah's medical visits by providing transportation, and services from two agencies [namely, Nurturing Seeds and Family Network] to provide supervised visitation and training in basic childcare skills. Concerned that the respondent was ‘being overwhelmed with too many services, ' the department sought and was granted permission for the respondent to undergo psychological evaluations.

         ‘‘The respondent underwent two psychological evaluations that informed the court's decision. The first evaluation, conducted by Madeleine Leveille, a licensed psychologist, was completed in August, 2014, prior to the neglect trial. In addition to providing the court with the respondent's background, Leveille's evaluation [contained] key observations and opinions. For example, when discussing her mental illness, the respondent told Leveille that she regularly saw a ‘shadow, ' which Leveille characterized as a visual hallucination. Leveille concluded that the respondent hada‘ limited conceptual understanding, [was] highly dependent socially on others, and [had] odd and occasionally paranoid and cynical thought processes.' Moreover, the respondent's ‘thinking processes show[ed] clear evidence of her [i]ntellectual [d]isability, [s]chizophrenia and a mood disorder.' Leveille was unequivocal that ‘[h]aving an [i]ntellectual ...


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