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In re Damian G.

Court of Appeals of Connecticut

November 16, 2017


          Argued October 4, 2017 [**]

          Michael S. Taylor, assigned counsel, with whom was Marina L. Green, assigned counsel, for the appellant (respondent mother).

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

          Michael F. Miller, for the minor children.

          Keller, Elgo and Flynn, Js.


          KELLER, J.

         The respondent, Felicia B., appeals from the judgments of the trial court terminating her parental rights with respect to her biological sons, Damian G. and Jeremiah G., pursuant to General Statutes § 17a-112 (j).[1] The respondent claims that the court erroneously found that: (1) she failed to rehabilitate and (2) the termination of her parental rights was in the best interests of the children. We affirm the judgments of the trial court.

         On March 29, 2016, the Commissioner of Children and Families (petitioner) petitioned the court to terminate the parental rights of the respondent and Juan G. in their biological sons, Damian and Jeremiah. Following a trial, the court granted the petitions.[2] In its oral decision, [3] the court observed that, after the petitioner filed the present petitions, Juan G. consented to the termination of his parental rights with respect to both children. The respondent, however, contested the petitions. Before setting forth relevant legal principles, the court observed: ‘‘As to [the respondent], the [petitioner] . . . claims that it is in the best interests of the boys to terminate [the respondent's] parental rights, that [the Department of Children and Families (department)] . . . made reasonable efforts to reunify the children with [the respondent], or [the respondent] was unable or unwilling to benefit from reunification efforts, that the boys had been found in a prior proceeding to have been neglected, and that [the respondent] had failed to achieve the degree of personal rehabilitation that would encourage the belief that within a reasonable time, considering the age and needs of the children, [the respondent] could assume a responsible position in the lives of her children.''

         The court went on to find the following facts under the clear and convincing evidence standard of proof: ‘‘Damian was born [in] September . . . 2011; Jeremiah was born [in] January . . . 2014. [The respondent] is the mother of both boys. [Juan G.], who consented to the termination of his parental rights, was the father of both boys.

         ‘‘[The respondent] had a very troubled childhood. She was adopted and raised in New Hampshire and Maine. She acknowledged a significant history of substance abuse which began at the age of eight. She started using alcohol and incorporating marijuana. By age thirteen, she began experimenting with and using heroin. By age sixteen, she was using cocaine. She also reported abusing oxycodone and Vicodin. [The respondent] has an extreme history of substance abuse.

         ‘‘As well, she reported being traumatized as a child, that trauma includ[ed] sexual abuse, [and] verbal and mental abuse during her childhood. She has not spoken in detail about it. She did report a history of suicidal ideation and acts, as well as cutting and burning behavior in efforts to harm herself. She did report that those have not occurred for years.

         ‘‘Following Damian's birth, the department was involved for a period of time in 2012. A period of protective supervision resulted in the closure of the file.[4]

         ‘‘In August, 2013, [Juan G.] was arrested and incarcerated as a result of a serious domestic violence incident between [Juan G.] and [the respondent].

         ‘‘On November 12, 2013, the [petitioner] filed a neglect petition and sought an order of temporary custody for Damian. At that time, [the respondent] acknowledged to the department that she had relapsed and begun using heroin approximately three months earlier, which would coincide with the date of [Juan G.'s] removal from the home by the authorities. [The respondent] was pregnant with Jeremiah at the time.

         ‘‘The order of temporary custody was granted on November 12, 2013, for Damian, and sustained on November 22, 2013, by agreement. At that time, it was reported that [the respondent] was seeking mental health and substance abuse treatment at Wellmore in Waterbury and was pregnant with Jeremiah.

         ‘‘On December 18, 2013, [the respondent] and [Juan G.] submitted pleas of nolo contendere, and Damian was adjudicated neglected and committed to the [department]. Specific steps for reunification were set and signed by [the respondent] on that date.[5] [The respondent] at that time was at the Crossroads Amethyst House program.

         ‘‘Jeremiah was born [in] January . . . 2014, and discharged from the hospital with [the respondent] for continued placement at the Crossroads program.

         ‘‘On April 1, 2014, a motion to open and modify disposition as to Damian was granted, and protective supervision was granted for a period of nine months. [The respondent] was residing with the boys at the Amethyst House at the time. She was discharged from the Amethyst House on July 28, 2014. During her period of time there, she was noted to have been frustrated with her boys and did not utilize counseling sessions afforded to her to address any of her needs. She chose not to come to a weekly one-on-one session.

         ‘‘In an attempt to engage her, the Amethyst House consulted with her supervisor for suggestions in engaging [the respondent] in the individual counseling process. After making several attempts, [the respondent] was notified that her failure to attend would be documented. She was reminded that her recovery process needed her input. She appeared to be minimally engaged.

         ‘‘In late July, allegations arose as to whether [the respondent] was using [a synthetic form of cannabis known as] K2 and selling K2, as reported by other residents. Amethyst House relied on a drug test to show that [the respondent] had violated [its] house rules by using K2. The result of the test was greatly disputed by [the respondent]. As an immediate result of the report, [the respondent] was told she was on restricted status and could not leave Amethyst House. [The respondent] left Amethyst House without permission, attempting to manipulate the situation. It led to her discharge.

         ‘‘As a result of her discharge from Amethyst House, she had nowhere to go and her boys became homeless, and a second order of temporary custody was issued. On July 31, 2014, a neglect petition was filed on behalf of Jeremiah, and orders of temporary custody were issued on behalf of both boys. Those orders for temporary custody were subsequently sustained, and on August 29, 2014, Jeremiah was adjudicated neglected.[6]

         ‘‘On September 22, 2014, [the respondent] had secured supportive housing through the Thames River Family Program in Norwich. The court returned both boys to [the respondent], subject to six months of protective supervision, which was subsequently extended to June 19, 2015.

         ‘‘During this period of time [the respondent] was expected to cooperate with individual counseling . . . [and] with substance abuse treatment and testing, to not use any drugs unless prescribed, to get and maintain an adequate home and a legal income, to cooperate with any restraining order, and, when the boys were not in her care, to visit as often as permitted.'' (Footnotes added.)

         The court went on to address the respondent's compliance with her specific steps for mental health and substance abuse treatment. The court stated: ‘‘With respect to the individual counseling component, [the respondent] was referred or engaged in individual counseling with several different services. She was addressing her post-traumatic stress disorder and anxiety issues with the United Community Family Services. As noted, she entered the Wellmore Behavioral Health Program at the time Damian was removed from her care for inpatient treatment. That individual counseling was continued through the Amethyst House and, as noted, [the respondent] was not fully cooperative and engaged with that counseling.

         ‘‘[The respondent] was referred to the Women and Family Center for trauma focused services in New Haven on March 4, 2014. On April 22, 2014, [the respondent] advised the department that she had left it as she did not see a benefit and was planning on leaving the area. As noted, [the respondent] was unsuccessfully discharged from Amethyst House in late July, 2014. She relocated to a shelter in New London and reported that she was going to counseling at Connecticut Behavioral Health Associates.

         ‘‘In November, 2014, [the respondent] indicated that she had located housing in Norwich and was having difficulty getting to New London for her counseling sessions. [The respondent] was referred to the United Community Family Services or the Connecticut Behavioral Health Associates in Norwich. From November, 2014, until January, 2015, [the respondent] was not involved in those services.

         ‘‘[The respondent] did an intake for a dual diagnosis program in January, 2015, at the Southern New England Mental Health Authority and only reported one time between then and late March, 2015.

         ‘‘This case took a dramatic change in April, 2015. [The respondent] was residing in supportive housing with her sons. In early April, 2015, without notice to the [department], [the respondent] gave temporary custody of her sons to [Juan G.] and went to Maine. [The respondent] was arrested on April 13, 2015, on serious charges related to the sale of narcotics. As a result of this arrest, [the respondent] was incarcerated, sentenced, and imprisoned in Maine from April, 2015, until April, 2016.

         ‘‘[The respondent] did not immediately notify the department of her plans and her placement of her sons with [Juan G.].[7] A third order of temporary custody for Damian and a second order of temporary custody for Jeremiah was issued following the department learning of [the respondent's] arrest and incarceration.

         ‘‘[These orders] of temporary custody [were] issued on April 17, 2015. The boys have remained in the care of the department since that date. Both boys were committed to the department on July 7, 2015, and have remained committed ever since.

         ‘‘Specific steps had been in place since 2013, as noted. [The respondent's] attorney negotiated new steps for [the respondent] while [she was] incarcerated, including that she engage in regular or frequent individual therapy until successful completion, and that she cooperate with [the department's] recommended services while incarcerated, including substance abuse services, mental health services, and parenting programs.[8]

         ‘‘[The respondent], to her credit, attended and participated in multiple programs while [she was] incarcerated and submitted a number of certificates of completion. [The respondent] claimed that these were all the programs that were available to her, and the court has no reason to believe otherwise.

         ‘‘While [the respondent] was incarcerated, [Juan G.] came back into the picture and asked for reunification efforts and moved to revoke the commitments. Substantial efforts at reunification with [Juan G.] were made, all of which were supported by [the respondent] from her incarceration in Maine. These efforts continued following [the respondent's] discharge from incarceration in April, 2016, again, with [the respondent's] support.

         ‘‘Unfortunately for the boys and [Juan G.], [Juan G.] was arrested and incarcerated as a result of serious charges completely unrelated to [the respondent], and subsequently consented to the termination of his parental rights . . . .

         ‘‘While [the respondent] has been back in the community since April of 2016, she has complied with some steps and not fully with others. [The respondent] has engaged in mental health counseling and has visited faithfully with her boys. She had little or no bond with Jeremiah, but has reengaged with him. Her boys care for her. She deeply cares for them.

         ‘‘Unfortunately, as [Emily Kavanaugh, a social worker who is employed by Kids Advocates and provides supervised visitation and parenting and education skills] reported, [the respondent] appears overwhelmed and teary when the boys misbehave, and [the respondent appears to be] unable to meet their needs. . . . Kavanaugh has repeatedly recommended that structure be provided, particularly because of these boys and their needs.

         ‘‘Both boys have developmental delays, Damian's the most serious of all. Damian may be diagnosed with autism spectrum disorder; there is a suggestion of that. His behavior is difficult to manage, he has trouble with transition, and he is clearly developmentally delayed. Jeremiah demonstrates developmental delay and is a very high-energy, difficult to control young man.

         ‘‘Kavanaugh testified that, and the court finds credible her claim, that structure and limit setting by [the respondent] do not go well; that both boys have significant developmental delays; that [the respondent] can get it in the moment, but does not seem able to absorb and retain and use developmentally appropriate toys, games, discipline, or limit setting. Ultimately, [Kavanaugh] felt that discipline and limit setting were a great challenge for [the respondent] and that [the respondent] would shut down and not follow through.

         ‘‘[The respondent] advised the department that she had obtained a job working in landscaping and that she also had social security disability benefits. The department could not confirm the landscaping job. [The respondent] did not provide proof of income on that score, nor was the department able to discern whether the under-the-table income would result in [the respondent] losing her social security disability benefits or being exposed to criminal possibilities.

         ‘‘So it is unclear whether [the respondent] has an appropriate or sufficient legal income. What was clear is [the respondent] did not have . . . appropriate or sufficient housing. [The respondent] was living in one room of a rooming house and would not let the department inspect it. She acknowledged that it was not a resource for the boys and saw no reason for [the department] to inspect her ...

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