In re Corey C.
This opinion is subject to revisions and editorial changes, not of a substantive nature, and corrections of a technical nature prior to publication in the Connecticut Law Journal.
The respondent father appealed to this court from the judgment of the trial court terminating his parental rights with respect to his minor child.
The father claimed, inter alia, that the court erred in concluding that he failed to achieve a sufficient degree of personal rehabilitation, as required by statute (
- The evidence was sufficient to support the trial court’s finding that, under the totality of the facts and circumstances, the department made reasonable efforts to reunify the respondent father with the child and that he was unable or unwilling to benefit from its reunification efforts:
- The department offered the parents adequate feedback with respect to their participation in the therapeutic family time program, as a worker assigned to the respondent’s family provided feedback after each of nine weekly visits with the parents and the child and participated with a department social worker in two other meetings to review their progress with regard to parenting skills, and, contrary to the father’s assertion, the parents were provided educational tools to help them stop smoking, which were reviewed with them, and were advised how their smoking adversely affected the child’s health, as it was explained to the father that the smell of smoke in clothes and hair could trigger the child’s asthma, the father was told that the child’s pediatrician had reported that thirdhand smoke from the parents’ visits with the child was impacting the child’s health, and the child’s pulmonologist determined that thirdhand smoke from the parents’ clothes and belongings aggravated the child’s symptoms during a visit on the day that the parents told a therapeutic family time worker that they were quitting smoking; furthermore, the father admitted that he and the mother repeatedly were urged to stop smoking, the parents’ several representations that they were attempting to quit or had quit smoking undermined the father’s claim that the department should have recognized a need for further intervention, and, as therе was no evidence that the father asked the department for smoking cessation services, his failure to request such services undermined his claim that those services were part of what the department should have provided as part of its reasonable efforts to reunify him with the child.
- This court did not need to reach the merits of the respondent father’s claim that the trial court improperly found that he was unable or unwilling to benefit from the department’s reasonable efforts to reunify him with the child, as the trial court’s finding that the department made reasonable efforts was sufficient to satisfy
§ 17a-112 (j) .
- The respondent father could not prevail on his claim that the evidence was insufficient to support the trial court’s conclusion that he failed to
rehabilitate himself, which was based on his assertion that the court’s factual predicates for that conclusion were clearly erroneous: the court’s subordinate factual findings were supported by the evidence and the rational inferences to be drawn therefrom, as the father’s eight minute struggle to put the child in a car seat, which was observed by the psychologist who had evaluated him, and which is a basic parenting skill, raised concerns about and shed light on his ability to adequately care and provide for a child, the father was unable or unwilling to change the mother’s smoking habits, as he was aware that he and the mother did not adhere to instructions about the dangers smoking posed to the child but failed to disclose that lack of compliance, the father had a sporadic history with individual counseling, as he discontinued his therapy for a significant period of time, despite its having been a requirement of the specific steps he was issued, the court made no suggestion that the father suffered from past mental health diagnoses and substance abuse at the time of the trial, the father hаd no clear parenting plan for the child if reunification were to occur, despite having discussed day care for the child while he was at work, as there was no evidence as to which day care the child would attend or who would pay for it or provide transportation, and the mother, who worked as a live-in companion, provided no clear idea about what her employment would consist of, the parents had a history of difficulties together and failed to complete couples counseling, their Facebook pages contained allegations of infidelity and discussion of potential separation, and department workers witnessed several arguments between them, the evidence at trial that related to the mother and to the father’s involvement with and knowledge of her significant parenting issues was relevant to whether he had rehabilitated, as he demonstrated poor judgment and undermined any prospect of the child’s being reunified with him by failing to develop a plan to protect him from the mother’s deficient parenting, and the parents’ continued smoking or the father’s tolerance of the mother’s smoking created an unacceptably risky home environment for the child that was indicative of an inability to prioritize the child’s needs. - The respondent father could not prevail on his claim that the trial court, in its adjudicatory findings, improperly compared his suitability as a parent, and that of the mother, to that of the foster parent; the court used the comparison between the foster parent and the father and the mother to highlight the child’s emotional and developmental needs, as the majority of the court’s comparison involved the mother, the court’s reference to the lack of warmth the child showed with the mother compared with that he showed with the foster parеnt was made on the basis of what the therapeutic family time professionals determined were the child’s specific needs, and the court’s comparison, when viewed as a whole, focused on the child’s needs and the inability of the father and mother to meet those needs.
Argued March 2—officially released June 8, 2020**
Procedural History
Petition by the Commissioner of Children and Families to terminate the respondents’ parental rights with respect to their minor child, brought to the Superior Court in the judicial district of New London, Juvenile Matters at Waterford, and tried to the court, Driscoll, J.; thereafter, the court denied the respondent father’s motion to revoke the commitment of the minor child to the petitioner; judgment terminating the respondents’ parental rights, from which the respondent father appealed to this court. Affirmed.
Benjamin M. Wattenmaker, assigned counsel, for the appellant (respondent father).
Evan O’Roark, assistant attorney general, with whom, on the brief, were William Tong, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).
KELLER, J. The respondent, Corey C., appeals from the judgment of the trial court terminating his parental rights with respect to his biological minor son, Corey C., Jr., pursuant to
The record reveals the following relevant facts and procedural history. Corey was born on September 28, 2017. On October 4, 2017, the petitioner, the Commissioner of Children and Families (commissioner), filed a neglect petition and obtained an ex parte order of temporary custody of Corey. In the neglect petition, the commissioner alleged predictive neglect, given the fact that the parents were married and living together, had an unstable relationship, mental health and substance abuse issues, and the mother had failed to care safely for her first two children. The order of temporary custody was sustained by agreement. On March 6, 2018, the respondent and the mother submitted written pleas of nolo contendere, and Corey was adjudicated neglected and committed to the care and custody of the commissioner. Prior to and following Corey’s commitment, the department provided services to the respondent and the mother.
Subsequently, a petition to terminate parental rights was brought against the respondent and the mother. On April 11 and May 2, 2019, a termination of parental rights trial was held before the trial court, Driscoll, J. The court granted the petition and terminated the parental rights of the respondent and the mother.2
In its memorandum of decision, the court found the following adjudicative facts under the clear and convincing evidence standard of proof: ‘‘[Corey] was born on September 28, 2017, to the . . . mother and [the] respondent. [The] [m]other had two older children, both of whom were removed from [the] mother’s care. Guardianship of [the] mother’s firstborn was transferred to [the] maternal grandmother, with whom [the] mother has a conflicted relationship. [The] [m]other’s parental rights [as to] her second son were terminated with [the] mother’s consent, and the child was adopted
‘‘[The] [m]other, by history, has mental health diagnoses, including bipolar disorder with psychotic features, anxiety, depression, and obsessive compulsive disorder. She was inconsistent in her mental health treatment and medication management. She also has a history of substance abuse, including opiates, heroin, marijuana, and K2 [synthetic marijuana]. She has a history of anger management issues and threatening behavior. The fiancée of the adoptive mother obtained a full, no contact protective order against [the] mother, which was in effect from February, 2016, until February, 2017.
‘‘[The respondent], by history, has mental health diagnoses, including bipolar disorder, sociopath, intermittent explosive disorder, and he has been hospitalized psychiatrically on four occasions. [The respondent] has a substance abuse history, including Percocet, morphine, and Klonopin abuse. He, too, has a conflicted relationship with his mother. He has a criminal history dating back to 2004, with his most recent conviction based on an October, 2014 arrest. He completed a five year term of probation in July, 2017. He self-reported significant health care issues.
‘‘Staff from the Lawrence + Memorial Hospital [in New London] notified the department that [the] mother had given birth to [Corey]. Due to the difficulties the parents had in their relationship, their own mental health issues, and their lack of parenting skills, an agreement was made that [the] parents and [Corey] would reside with relatives and be supervised at all times with [Corey].3 A considered removal meeting was held on October 3, 2017. On October 4, 2017, the petitioner filed a neglect petition and obtained an ex parte order of temporary custody . . . of [Corey] based on . . . predictive neglect. [Corey] remained with the relatives.4 The parents were served, appeared in court, were advised of their rights, and appointed counsel. The order of temporary custody was sustained by . . . agreement. An updated psychological evaluation was ordered to be done by [Nancy] Randall [a licensed psychologist]. [Randall] previously [had] done one of [the] mother and the [respondent], [and] then [the] mother’s boyfriend, in connection with the prior termination case for [the] mother’s second child.
‘‘[Randall’s] report was dated February 13, 2018. [Randall] found [the] mother’s prior diagnosis of bipolar disorder with psychotic features to be appropriate, and that [the] mother’s panic disorder had improved and [that] there was no current evidence of obsessive com-
‘‘On March 6, 2018, [the] mother and [the respondent] submitted written pleas of nolo contendere, [and Corey] was adjudicated neglected and committed to the [care and custody of the commissioner] . . . until further court order. [Corey] has been in the [commissioner’s] care and custody since the October, 2017 order of temporary custody. The parents were issued specific steps7 [pursuant to
‘‘[The] [m]other and [the respondent] have met several of their steps. They have maintained consistent housing in a one bedroom home. They have maintained stable employment, though their employment would make a parenting plan difficult. [The respondent] works long hours, some weeks up to seventy hours,8 and the mother works as a live-in companion in [a] client’s home. [The] [m]other stays [at the client’s home] from Thursday through Sunday and sleeps in the home. Her agency had begun the process of firing [the] mother in January, 2019, but reconsidered at the request of the client.
‘‘The parents indicated that the multiple days of separation every week reduced the likelihood of relationship discord. While the parents present as a committed couple, they have had a history of difficulties. In 2015, [the] mother moved in with another man for approximately three months. [The] [m]other describes [the respondent] as very jealous of any interactions between [the] mother and other men. At an intake for Sound Community Services, in August, 2018, [the] mother said her long-term goal was . . . ‘becoming a healthier person, change myself from cheating to being the wife that my husband wants me to be.’ [The] [m]other and [the
‘‘[The] [m]other has been inconsistent in her individual therapy. She began counseling with Sound Community Services and remained with [it] until February, 2018, when she discontinued treatment. She resumed individual therapy in August, 2018. At the time of trial, her history of therapeutic engagement was inconsistent. She was doing outpatient therapy approximately one time a month, much less than required, and she advised [the department] that she did not know her therapist’s name. She did appear more emotionally stable, but the court has concerns about her insight into her treatment, particularly when [the] mother advises providers that if she does not reunify with her child, all of this therapy would have been a waste of time. This demonstrates a lack of insight into her own mental health needs. . . .
‘‘[The respondent] also has a history of sporadic compliance with individual counseling. [Stephanie] Gill-Manville was [the respondent’s] clinician [at Sound Community Services] from 2013 until [2017]. She, like Randall, saw no need for medication for [the respondent]. [The respondent], without advice, discontinued individual therapy in February, 2018, and did not resume until October, 2018. He had not been successfully discharged or released from the reunification step. Since October or November, 2018, [the respondent] has resumed counseling at Sound Community Services. [Peggy Ann Nelson], [the respondent’s] individual therapist, has included [the] mother in some sessions. [Nelson] said [the respondent] has been candid about difficulties in their relationship but believes that [the] mother and [the respondent] were strongly attached and united as a couple. She was unable to opine on [the respondent’s] parenting, as she has never seen him with [Corey], but she knows he wishes to be an active parent. He has not been discharged. It does not appear that [the respondent] has sufficient insight into the negative effect [that the] mother’s mental health has on her parenting, despite [the respondent’s] substantial period of individual counseling.
‘‘Most important in determining rehabilitation are issues relative to parenting and visitation. The parents indicated that they had a strong desire to parent [Corey] during the critical period of [his] infancy. The department on four separate occasions in November, 2017, and December, 2017, offered to the parents an additional supervised weekly visit. The parents declined. Even more telling, with respect to the parents’ interest in [Corey], was the fact that [Corey] was in the relative foster home, [which] had adopted [the] mother’s second
‘‘The department referred the parents to Kids [Advocates, LLC], a supervised visitation and parenting education program. The provider reported that the parents were essentially passive and that [the] mother, in particular, did not make eye contact or interact with [Corey]. [The] [m]other needed frequent redirection and instructions to meet [Corey’s] basic needs and often disregarded the suggestions. [The] [m]other had trouble soothing [Corey] when [he was] fussy and often passed him to [the respondent]. Limited progress was made by the parents. In March, 2018, the department referred the family to the Child & Family Agency [of Southeastern Connecticut, Inc.] for its therapeutic family time (TFT) program.9 [Elizabeth Keniston, the TFT community worker assigned to work with the family] noted limited to moderate progress.10 It took a long time to teach [the] mother not to let [Corey] pick things up off the ground and put them in his mouth, with [the] mother often attempting to justify the cleanliness of the item. [The] [m]other reported her difficulty in soothing a fussy baby and expressed a concern that her [posttraumatic stress disorder] would kick in11 and put [Corey] at risk. [The respondent] expressed a concern that all this work would be a waste of time if they didn’t get [Corey] back. [Keniston] noted a lack of affect by [Corey] in the parents’ company, especially with [the] mother. She contrasted this with the warmth and attachment observed between [Corey] and [the] foster parent. At times, [Keniston] had difficulty redirecting [the] mother’s attention from [the] mother’s cell phone to [Corey]. [The] [m]other complained of having to carry [Corey] in the car seat, as it was too heavy for her. [The] [m]other asked the worker to carry the baby instead. On one visit to the beach, while [Corey] was sitting with [the] mother, [he] fell face forward into the sand, and it required [the respondent] to tell [the] mother to pick up [Corey]. At another outdoor visit, on a cloudy day, [Corey] became sunburned, much to the embarrassing chagrin of [Keniston]. [Keniston] noted, however, that neither parent assumed any shared responsibility for the failure to protect [Corey] and apply sunscreen. The parents were unable to provide a clear plan for [Corey] if reunification occurred. [The respondent] indicated that [the] mother would never be left home unsupervised with [Corey] but did not have a reasonable plan for who would supervise [him] while he was working up to seventy hours per week. He also indicated that the proposal was being done to satisfy the department, as he had no concern [about the] mother[’s] being alone with [Corey] despite [the] mother’s demonstrated, limited parenting skills. [The] [m]other did complete a brief parenting program with Catholic Charities
‘‘TFT recommendеd against reunification and closed its file.12 At the conclusion of [the] assessment, [it] determined not to proceed further. The major example of parenting deficits, which was of great concern to the program, and of great concern to the court, was the parents’ wholly inadequate response to [Corey’s] medical needs. [Corey] has a serious asthmatic condition. He is being treated by Nutmeg Pediatric Pulmonary Services [in Branford]. The parents have been advised that it is particularly important for [Corey] to be in a smoke-free atmosphere, which includes eliminating secondhand13 smoke exposure transferred from clothing or upholstery. He has difficulty breathing, increased coughing, and heightened fussiness after visiting with his parents. They have been repeatedly urged to stop smoking or, if not, to shower and change into clean clothes, [to] not [drive] in a car in which they’ve been smoking, and to walk to visits for further airing, if necessary. Despite frequent admonitions, [Corey’s] physical reaction to visits indicates ongoing exposure to secondhand smoke.14 [The] [m]other insisted that she quit smoking as of January, 2019. [Gail Hooper, the department social] worker, credibly testified that she saw numerous cigarette butts outside the private entry to the parents’ home and smelled . . . stale smoke in the home. [Although the] mother testified that she had stopped smoking, in her own exhibit G, a clinical summary from Sound Community Services of an encounter with [the] mother on April 8, 2019, [the] mother disclosed that she was a heavy tobacco smoker from January 3, 2017, to the present . . . . [The respondent] is unable or unwilling to change [the] mother’s smoking habits and make the environment safe for [Corey]. This, to the court, is the most definitive example of the parents’ lack of insight into [Corey’s] needs.
‘‘Finally, the court can, and does, give added weight to the opinions of Randall, who was recognizеd as an expert. In 2018, Randall found both parents to be more emotionally stable than when she saw them in 2014, but she did not feel [that] either parent was invested in the extra work it takes to create an attachment. She opined at trial that the parents had not rehabilitated and that [Corey] would be at emotional risk if [he were] returned to them and at medical risk as well. She testified that the TFT program was exactly the kind of program [that the] mother needed. As noted, that program recommended against reunification. Randall persuasively testified that the parents are each other’s primary supports, and, given their troubled relationship, there is increased risk of conflict and fighting. If [the] mother were to lose [the respondent’s] support, she could become disregulated emotionally, with a potential for risk to any child in her care. She said the prognosis for reunification was not good and [that] it would not be in [Corey’s] best interest to deny him a stable, permanent
‘‘The court finds by clear and convincing evidence that the department has proven its adjudicatory allegations, to wit, that it made reasonable efforts to reunify [Corey] with [the] mother and [the respondent], that [the] mother and [the respondent] are unable or unwilling to benefit from those efforts, that [Corey] was adjudicated neglected in a prior proceeding and that [the] mother and [the respondent] have each failed to achieve the degree of personal rehabilitation that would encourage the belief that within a reasonable time, considering their child’s age and needs, that either parent could assume a responsible position in [Corey’s] life.’’ (Emphasis omitted; footnotes added.)
The court set forth findings with respect to the seven criteria set forth in
The court then made the following dispositional findings. ‘‘[Corey] has serious allergy and pulmonary needs. The parents are unable or unwilling to take the necessary measures to meet them. Further, the parents have shown limited progress in addressing those needs common to all children, specifically, attachment, and the child’s interest in sustained growth, development, wellbeing, and continuity and stability of his environment. [Corey] is in a placement that can meet his needs and wishes to adopt. [Corey’s] attorney advocates for termination so [he] can be adopted. As noted, there is a distinction between parental love and parental competence. The [petitioner] has proven by clear and convincing evidence that termination of parental rights is in [Corey’s] best interests.
‘‘Wherefore, after due consideration of [Corey’s] need for a secure, permanent placement, and the totality of the circumstances, and having considered all statutory criteria, and having found by clear and convincing evidence that grounds exist to terminate [the] mother[’s] and [the respondent’s] parental rights as alleged, and that it is in [Corey’s] best interests to do so, and having denied [the respondent’s] motion to revoke commitment, the court orders:
‘‘That the parental rights of the . . . mother . . . and the respondent father . . . are hereby terminated . . . .’’ This appeаl followed.
I
We first address the respondent’s claim that the court improperly concluded that the department made reasonable efforts to reunify him with Corey and that he was unable or unwilling to benefit from the department’s reunification efforts.
Section ‘‘17a-112 (j) (1) requires that before terminating parental rights, the court must find by clear and convincing evidence that the department has made reasonable efforts to locate the parent and to reunify the child with the parent, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts provided such finding is not required if the court has determined at a hearing . . . that such efforts are not appropriate . . . . Thus, the department may meet its burden concerning reunification in one of three ways: (1) by showing that it made such efforts, (2) by showing that the parent was unable or unwilling to benefit from reunification efforts or (3) by a previous judicial determination that such efforts were not appropriate. . . . The trial court’s determination of this issue will not be overturned on appeal
Our Supreme Court ‘‘clarified the applicable standard of review of an appeal from a judgment of the trial court pursuant to
‘‘[Section 17a-112] imposes on the department the duty, inter alia, to make reasonable efforts to reunite the child or children with the parents. The word reasonable is the linchpin on which the department’s efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof. Neither the word reasonable nor the word efforts is, however, defined by our legislature or by the federal act from which the requirement was drawn. . . . [R]easonable efforts means doing everything reasonable, not everything possible. . . . The trial court’s determination of this issue will not be overturned on appeal unless, in light of all of the evidence in the record, it is clearly erroneous.’’ (Internal quotation marks omitted.) In re G.S., 117 Conn. App. 710, 716, 980 A.2d 935, cert. denied, 294 Conn. 919, 984 A.2d 67 (2009).
A
The respondent’s claim that the court improperly found that the department made reasonable efforts to reunify him with Corey is premised on two arguments. First, the respondent argues that the department failed to offer any feedback to him and the mother in the TFT program, and, second, he argues that the department failed to offer any smoking cessation services to either of the parents. We disagree that the court improperly found that the department failed to make reasonable efforts to assist them in quitting smoking.
The record contains sufficient evidence on which to affirm the court’s finding that the department made
Second, we also disagree with the respondent’s argument that the department did not make reasonable efforts to reunify because it failed to offer smoking cessation treatment to the respondent and the mother.17 As aforementioned, the parents’ smoking habits werе of particular concern to the court, which found, on the basis of the evidence before it, that Corey suffers from asthma, bronchitis, and gastroesophageal reflux disease. There was evidence in a TFT meeting summary dated May 11, 2018, of the foster father reporting to the attendants at the meeting, which included the respondent, that following Corey’s weekly TFT visits with the respondent and the mother, Corey’s asthma symptoms were aggravated and the foster parents had to administer breathing treatments. The meeting’s administrative case review facilitator, Cassandra Bunkley, explained to the respondent that the lingering smell of smoke in clothes and hair can trigger an infant’s asthma. It was decided that the parents would not smoke three hours prior to the visits and would change their clothes. The mother, however, was not present at this meeting. On June 11, 2018, Keniston told the parents that Corey’s pediatrician had reported to the foster parents that thirdhand smoke from visits was impacting Corey’s
The respondent argues that the department did not provide him or the mother with adequate smoking cessation services, and, therefore, the department did not make reasonable efforts to reunify the parents with Corey.18 We disagree with the respondent for several reasons. First, in his brief, the respondent concedes that he and the mother were ‘‘repeatedly urged to stop smoking . . . .’’ Additionally, the evidence reflected that the respondent and the mother participated in weekly TFT meetings with Keniston. As part of these meetings, Keniston provided the respondent and the mother with printed material on the effects of thirdhand smoke and reviewed the materials with the parents. Further, the evidence reflected that the respondent and the mother were made aware of the medical issues that exposure to smoke particles during their visits could cause Corey. Specifically, Keniston advised the respondent and the mother that Corey’s pediatrician had reported to the foster parents that thirdhand smoke from the biological parents’ visits was impacting Corey’s health. The court found that, despite these attempts to change the parents’ smoking habits, the parents ‘‘demonstrated little concern and understanding of [Corey’s] medical needs in regard to the impact [thirdhand] smoke has on [Corey] . . . and instead shifted blame to [the department].’’
Further, the parents represented, in several instances, that they were attempting to quit smoking, or that they had quit smoking, further undermining the respondent’s claim that the department should have recognized a need for its further intervention. For example, after Keniston advised the parents of the effects of smoking on Corey’s health, the respondent and the mother stated that they were going to quit smoking.
To the extent that the respondent claims that the department failed to provide him or the mother with any specialized smoking cessation services such as cognitive behavioral therapy, nicotine replacement therapy, motivational interviewing or antidepressants, he never made this claim at trial. Further, there was no evidence before the court that the respondent, who signed and agreed with the specific steps, asked the department at any time for any of the smoking cessation services, which, he contends for the first time, on appeal, should have been provided to him.19 If the respondent believed that the department was not doing enough, he could have moved the court for an order directing the department to provide him with smoking cessation services. The respondent’s failure to request such services undermines his present argument that those services were part of what the department should have provided as part of its reasonable efforts to reunify him with Corey.20 ‘‘It is well settled that [o]ur case law and rules of practice generally limit [an appellate] court’s review to issues that are distinctly raised at trial.’’ (Internal quotation marks omitted.) Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 142, 84 A.3d 840 (2014). This principle was applied in the context of a reasonable efforts claim in In re Elijah C., 326 Conn. 480, 503–504, 165 A.3d 1149 (2017). In that case, the respondent mother claimed for the first time, on appeal, that the department should have secured an out-of-state assisted living facility for her because none was available in this state. Id. In rejecting this claim, our Supreme Court explained that ‘‘the proper place for the respondent to have raised her claim concerning an out-of-state placement was in the trial court, where the issue could have been litigated and a factual record developed as to whether reasonable reunification efforts required the department to search for an out-of-state placement.’’ Id.
‘‘[O]ur courts are instructed to look to the totality of the facts and circumstances presented in each individ-
B
Next, the respondent argues that the court improperly found that he was unable or unwilling to benefit from the department’s reasonable efforts to reunify him with Corey.
As our discussion of the court’s decision reflects, in its analysis under
As previously stated, we conclude that the court properly found that the department made reasonable efforts to reunify the respondent with Corey. Because, as we have explained, this finding is sufficient to satisfy
II
The respondent next claims that the court improperly concluded that the respondent failed to achieve such a degree of personal rehabilitation as would encourage
Section 17a-112 (j) (3) (B) requires the court to find by clear and convincing evidence ‘‘that . . . the child (i) has been found by the Superior Court . . . to have been neglected or uncared for in a prior proceeding . . . and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .’’ (Internal quotation marks omitted.) In re Shane M., supra, 318 Conn. 572 n.1.
Our Supreme Court has clarified that ‘‘[a] conclusion of failure to rehabilitate is drawn from both the trial court’s factual findings and from its weighing of the facts in assessing whether those findings satisfy the failure to rehabilitate ground set forth in
‘‘Personal rehabilitation as used in the statute refers to the restoration of a рarent to his or her former constructive and useful role as a parent. . . . [Section 17a-112] requires the trial court to analyze the [parent’s] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time. . . . [The statute] requires the court to find, by clear and convincing evidence, that the level of rehabilitation [that the parent has] achieved, if any, falls short of that which would reasonably encourage a belief that at some future date [he] can assume a responsible position in [his] child’s life. . . . [I]n assessing rehabilitation, the critical issue is not whether the parent has improved [his] ability to manage [his] own life, but rather whether [he] has gained the ability to care for the particular needs of the child at issue. . . . As part of the analysis, the trial court must obtain a historical perspective of the respondent’s child caring and parenting abilities, which includes prior adjudications of neglect, substance abuse and criminal activity.’’ (Internal quotation marks omitted.) In re Christopher L., 135 Conn. App. 232, 245, 41 A.3d 664 (2012).
Here, the respondent claims that ‘‘virtually all of the factual predicates that the trial court relied upon to support its legal conclusion are clearly erroneous,’’ and, therefore, that ‘‘there is insufficient evidence to support the trial court’s conclusion that the [respondent] failed to rehabilitate . . . .’’ Specifically, the respondent highlights eight factual findings, each of which we will address in turn. We conclude that the court’s subordinate factual findings are supported by the evidence and the rational inferences to be drawn therefrom, and, thus, the respondent has failed to demonstrate that there was insufficient evidence to support the court’s determination that he failed to rehabilitate.
First, the respondent challenges as clearly erroneous thе court’s finding that ‘‘the parents demonstrated limited skills, particularly with the use of [Corey’s] car seat.’’ The respondent argues that this finding ‘‘does not support the trial court’s conclusion that [he] failed to rehabilitate because it does not tend to show that [he] will not be able to assume a responsible position in [Corey’s] life at some future point.’’ In support of his argument, the respondent cites to studies highlighting the high frequency with which parents misuse child car seats.21 We disagree with the respondent and conclude that the court’s finding was not clearly erroneous.
At trial, Randall testified that she observed the respondent and the mother struggle for about eight minutes trying to put Corey in a car seat. She further testified that the respondent sought the aid of one of the foster mothers to resolve the issue. Randall testified that the parents’ difficulty with the car seat raised more general concerns about the parents’ ‘‘ability just to do basic kinds of childcare needs because that is a very basic need.’’ The evidence thus reflected that a parent’s ability to utilize a car seat is a basic parenting skill that, when viewed in light of the parents’ other parenting skills, sheds light on whether they possess the ability to adequately care for a child. Therefore, we disagree with the respondent’s argument that his difficulty with the car seat does not relate more generally to his ability to responsibly provide for Corey. Accordingly, we conclude that the court’s finding was not clearly erroneous because it was adequately supported by evidence presented at trial and the reasonable inferences drawn therefrom.
Second, the respondent challenges as clearly erroneous the court’s finding that he was unable or unwilling to change the mother’s smoking habits. Specifically, the respondent claims that it is ‘‘fundamentally unfair’’ to hold him responsible for the mother’s actions, and he also argues that a parent’s failure to stop smoking should not be a reason to terminate their parental rights. We conclude that the court’s finding was not clearly erroneous because the evidence presented at trial sup-
Third, the respondent challenges as clearly erroneous the court’s finding that he has a sporadic history with individual counseling. We disagree with the respondent and conclude that evidence was presented at trial that clearly supports the court’s finding. Specifically, at trial, Hooper testified that the respondent, despite the fact that engaging in individual counseling was one of his required specific steps, discontinued his therapy from February until October, 2018. This significant gap in treatment is sufficient to support the court’s finding that the respondent’s history with individual counseling was sporadic. The respondent argues that from July through October, 2018, he did not need to partake in individual counseling because he was engaged in couples counseling with the mother, although the court found that there was no record of the parents’ successful completion of counseling. Given the number of months in which the respondent was not engaged in the requisite individual counseling, a time period during which his compliance with specific steps was crucial, the court’s finding is not clearly erroneous.
Fourth, the respondent challenges as clearly erroneous the court’s finding that he, ‘‘by history, has mental health diagnoses,’’ as well as a history of substance abuse. The respondent does not dispute that he has a history of both mental health diagnoses as well as substance abuse issues. He also does not dispute that adequate evidence was presented at trial to support these histories. Rather, the respondent argues that, by referencing these histories, the court suggested that
Fifth, the respondent challenges as clearly erroneous the court’s finding that he did not have a clear plan for Corey if reunification were to occur. In particular, the court stated that the parents’ ‘‘employment would make a parenting plan difficult’’ and that ‘‘[the respondent] indicated that [the] mother would never be left home unsupervised with [Corey] but did not have a reasonable plan for who would supervise [him] while he was working up to [seventy] hours per week.’’ The respondent argues that the evidence presented at trial did not support the court’s finding because Hooper testified that the respondent had ‘‘talked about possibly having [Corey] go into day care while [the respondent is working].’’
At trial, however, no evidence was presented as to which day care Corey would attend, who would provide the transportation, or who would pay for the childcare. Further, the mother testified that, due to her employment as a live-in companion, she lived at a client’s home from Thursdays through Sundays. Although the mother mentioned the possibility of alternate employment or an alternate shift, she did not provide any clear idea of what her employment would consist of were Corey to return home. The parents did not provide a concrete plan that would account for the respondent working seventy hours per week, including Saturdays and Sundays, and the mother being absent four out of seven days of the week. Keniston also expressed concern regarding the parents’ incomplete care plan for Corey. Specifically, in a TFT appointment summary, she questioned ‘‘how realistic the [parents’] plan was and if it was beneficial for [Corey] . . . to return home to a household where he can’t be alone with his mother.’’23 Further, Randall stated: ‘‘I do not believe . . . that [the respondent] would become the only caregiver and that [the mother] would not have a significant role in that. That goes against really what their relationship is. [The respondent] kind of has a tendency to . . . give in to [the mother] and to give her what she wants, and I believe that if she wanted to take primary care of [Corey], that [the respondent] would be pretty likely to allow that.’’ On the basis of the evidence presented at trial and the reasonable inferences that could be drawn from the evidence, we conclude that the court’s finding that the respondent did not have an acceptable parenting plan for Corey was not clearly erroneous.
Sixth, the respondent challenges as clearly erroneous the court’s finding that he and the mother had a ‘‘history of difficulties’’ as a couple. We disagree with the respondent because sufficient evidence was presented at trial
Seventh, the respondent challenges as clearly erroneous the court’s findings that relate solely to the mother because the respondent argues that they ‘‘simply do not apply to the issue of whether [he] failed to rehabilitate.’’ We disagree. This court has previously held that, despite the department’s failure to put in concrete terms any requirement that the father change his relationship with the mother, the negative relationship between the parents posed a significant barrier to the father’s rehabilitation as a parent because he failed fully to appreciate the risk that the mother, who suffered from numerous impairments that interfered with her parenting, could pose to their young child. See In re Albert M., 124 Conn. App. 561, 565, 6 A.3d 815, cert. denied, 299 Conn. 920, 10 A.3d 1050 (2010). Here, similarly, although the respondent’s specific steps did not require him to separate from the mother, the respondent was aware that if he and the mother were to remain a unified couple, the mother’s parenting deficiencies posed a significant barrier to reunification. During one of the TFT meetings in May, 2018, the respondent was advised that ‘‘the department’s permanency plan is adoption due to concerns of [the mother’s] mental health and the inability shown in visits to meet [Corey’s] needs. . . . [The respondent] reported that he wouldn’t have married [the mother] if he would have known this would happen. [The department social worker] explained that even
In determining whether a parent has achieved sufficient personal rehabilitation, a court may consider whether the parent has corrected the factors that led to the initial commitment, regardless of whether those factors were included in specific steps ordered by the court or imposed by the department. See In re Shane M., supra, 318 Conn. 586. The court in the present case dealt with the respondent’s rehabilitation issues by accepting the fact that the parents were a firmly committed unit. It never ordered that the respondent separаte from the mother. In its decision, the court did not fault the respondent for not separating from the mother. Rather, it faulted him for not having a reasonable plan as to who would care for Corey, other than the mother, while he was at work seventy hours a week, and for being unable or unwilling to change the mother’s smoking habits to make the home environment safer for Corey. It also found that the respondent did not have ‘‘sufficient insight into the negative effect [the] mother’s mental health has on her parenting, despite [the respondent’s] substantial period of individual counseling.’’ By failing to sufficiently develop a plan to protect Corey from the mother’s deficient parenting, the respondent demonstrated poor judgment and undermined any prospect of Corey’s being reunified with him. Regardless of the moderate progress that the respondent made personally toward complying with some of his specific steps, Corey could not be reunited with the respondent until the overall environment in the parental home would not pose a threat to Corey.
Therefore, the following evidence presented at trial, relating to the mother, was relevant to whether the respondent failed to rehabilitate. Randall testified that, because of the mother’s post-traumatic stress disorder, which led to her feelings of wanting to shake her other child, the mother had the potential to be very dangerous to a young child in her care. Randall further testified that the mother ‘‘is more vulnerable to emotional problems, which could result [in] domestic violence, could result in her even possibly hurting her child because of her own lack of impulse control.’’ The TFT reports, which were introduced into evidence at trial, include a plethora of evidence supporting the mother’s inability to safely parent Corey. For example, the mother needеd ‘‘prompting and redirecting’’ with Corey, she let him put unsafe and dirty items in his mouth, she spent time on her phone instead of interacting with Corey, she complained about the weight of the car seat, she did not appropriately interact or bond with Corey, and she demonstrated a lack of understanding that her smoking had adverse effects on Corey’s health. Randall also testified that she did not believe that the respondent would become the only caregiver and that the mother would not also play a significant role. Randall testified: ‘‘That goes against really what their relationship is. He kind of has a tendency to . . . give in to her and give her what she wants, and I believe that if she wanted to take primary care of the baby, that he would be pretty likely to allow that.’’ On this record, we conclude that it was not improper for the court to determine that the respondent failed to rehabilitate, in part, due to factual findings relating to the mother.
Eighth, the respondent challenges as clearly erroneous the court’s finding that, ‘‘[d]espite frequent admonitions, [Corey’s] physical reaction to visits [with his parents] indicates ongoing exposure to secondhand smoke.’’25 (Footnote added.) Preliminarily, the respondent claims that the petitioner did not introduce any expert medical testimony to support the finding that Corey’s breathing difficulty and coughing was caused by exposure to smoke particles during his visits with the parents. Specifically, the respondent refers to language from Sherman v. Bristol Hospital, Inc., 79 Conn. App. 78, 828 A.2d 1260 (2003), in which this court stated that ‘‘[e]xpert medical opinion evidence is usually required to show the cause of an injury or disease because the medical effect on the human system of the infliction of injuries is generally not within the sphere of the common knowledge of the [layperson].’’ (Internal quotation marks omitted.) Id., 88. The court went on to state that ‘‘[a]n exception to the generаl rule with regard to expert medical opinion evidence is when the medical condition is obvious or common in everyday life. . . . Similarly, expert opinion may not be necessary as to causation of an injury or illness if the plaintiff’s evidence creates a probability so strong that a lay jury can form a reason-
Here, the petitioner’s evidence included a report from Corey’s pulmonologist, Palazzo, dated October 1, 2018, in which she stated that Corey had increased mucous, a cough and difficulty breathing on Monday nights into Tuesdays, following visits with his biological parents, which resulted in the need to administer nasal saline and Albuterol. Palazzo’s letter also stated: ‘‘I am concerned that exposure to [secondhand] smoke from his biological parents’ clothes or breath is what is causing these issues’’ and that ‘‘[i]t would be my recommendation to postpone a visit with his biological parents until he has fully recovered from these symptoms.’’ This evidence supports the court’s finding that Corey’s breathing difficulties were caused by exposure to thirdhand smoke during visits with the respondent and the mother. Although Palazzo did not testify, her report was admitted into evidence without challenge. Because the court did not admit it for a limited purpose, it can be used for all purposes, including establishing causation.26
Even if the letter from Palazzo did not establish causation between Corey’s breathing problems and thirdhand exposure to smoke particles from the parents, the exception from Sherman v. Bristol Hospital, Inc., supra, 79 Conn. App. 89, would apply because the petitioner’s evidence created a probability so strong that a reasonable trier of fact, applying a commonsense evaluation to the evidence, would be able to form a reasonable belief with respect to causation. In addition to the letter from Corey’s pulmonologist, Palazzo, the evidence also included reports from TFT indicating that, as early as May, 2018, the foster parents were having to administer asthma treatment to Corey after his visits and that his pediatrician had advised the foster parents that thirdhand smoke could be the issue. In her testimony, Hooper, the department social worker, stated that she visited with Corey both immediately after his visits with his biological parents and later in the week following those visits. Through these encounters with Corey, Hooper was able to determine that, after his visits with the respondent and the mother, Corey’s eyes were ‘‘runny’’ and ‘‘red’’ and he was ‘‘miserable.’’
The respondent fails to recognize the much broader concern that the court was expressing with respect to the parents’ smoking, which the court considered ‘‘[t]he major example of the parenting deficits . . . .’’ The court went beyond just finding fault with the parents for aggravating Corey’s asthma due to the presence of thirdhand smoke on their persons during supervised visits. Ultimately, even if the thirdhand smoke was possibly not the cause of Corey’s adverse reactions after the visits, the continued smoking of one or both of the parents would create an unacceptably risky home environment for a child with the medical issues Corey
On the basis of the evidence presented by the petitioner and the reasonable inferences to be drawn therefrom, we conclude that the court’s finding that Corey’s physical reaction to his visits with his parents indicates exposure to thirdhand smoke was not clearly erroneous. Accordingly, we conclude that the court’s subordinate findings that were challenged by the resрondent are not clearly erroneous, and, therefore, that the court properly determined that the respondent failed to rehabilitate.
III
Finally, the respondent claims that the court, in its findings in the adjudicatory phase of the proceeding, improperly compared his suitability as a parent, and that of Corey’s biological mother, to that of Corey’s foster parent during the adjudicatory phase of the termination proceeding. We disagree.
The respondent takes issue with the following language: ‘‘[The respondent] expressed a concern that all this work would be a waste of time if they didn’t get [Corey] back. [Keniston] noted a lack of affect by [Corey] in the parents’ company, especially with [the] mother. She contrasted this with the warmth and attachment observed between [Corey] and [the] foster parent. At times, [Keniston] had difficulty redirecting [the] mother’s attention from [the] mother’s cell phone to [Corey].’’ (Emphasis added.) Although the majority of the court’s comparison involved the mother, and not the respondent, the respondent properly challenges the comparison because it references ‘‘the parents’’ and because the parents were being reviewed as a unit, and, therefore, the mother’s attachment with Corey also affected the respondent.
We first set forth the applicable standard of review. ‘‘The interpretation of a trial court’s judgment presents a question of law over which our review is plenary. . . . As a general rule, judgments are to be construed in the same fashion as other written instruments. . . . The determinative factor is the intention of the court as gathered from all parts of the judgment.’’ (Internal quotation marks omitted.) In re James O., 322 Conn. 636, 649, 142 A.3d 1147 (2016).
‘‘[A] judicial termination of parental rights may not be premised on a determination that it would be in the child’s best interests to terminate the parent’s rights in order to substitutе another, more suitable set of adoptive parents.27 Our statutes and [case law] make it crystal clear that the determination of the child’s best interests comes into play only after statutory grounds for termination of parental rights have been established by clear
In support of their respective positions, both parties cite to our Supreme Court’s decision in In re James O., supra, 322 Conn. 636. The petitioner relies on the majority’s opinion, and the respondent relies on the concurring opinion in In re James O., as well as attempts to distinguish the majority’s analysis from the present case. In In re James O., in concluding that the respondent mother had failed to rehabilitate, the court held that the trial court did not improperly compare the respondent parents with the foster parent of the children at issue. Id., 652–57. The trial court noted that the foster parent provided the children with ‘‘an environment that is calm and understanding of the children’s needs.’’ (Internal quotation marks omitted.) Id., 653. Further, the court stated that, ‘‘[a]s both [children’s] therapists have made clear, the children have needed a caregiver who is calm, patient, able to set appropriate limits, willing to participate intensively in the children’s therapy, and able to help the children with coping skills to manage their anxiety.’’ (Internal quotation marks omitted.) Id. The court went on to state that the foster mothеr provided the children with such an environment and that she embodied the requisite characteristics of a parent who could meet the child’s needs. ‘‘In contrast,’’ the court continued, ‘‘[the respondent mother] is volatile and prone to violence, unable to set appropriate limits, unwilling to talk with the children’s therapists and, therefore, unable to help them use coping skills to manage their anxiety and ultimately, unwilling to believe the children’s statements regarding the trauma.’’ (Internal quotation marks omitted.) Id., 653–54. In reviewing this language, the Supreme Court determined that the trial court’s comparison to the foster mother was not improper because it was made ‘‘in light of what the children’s therapists have testified are the specific needs of the children. . . . The court is basing the level of care needed not on what [the foster mother] is providing to the children, but on what the children’s therapists have testified the children need from a caregiver.’’ (Emphasis omitted; internal quotation marks omitted.) Id., 655. Further, ‘‘[i]mportantly, the court never opined that [the foster mother] could meet the children’s needs or that [the foster mother] ought to be the person to meet their needs.’’ (Internal quotation marks omitted.) Id. There-
Here, we conclude that the trial court’s comparison between the foster parent and the respondent and the mother was not improper. Similar to the challenged decision of the trial court in In re James O., the trial court in the present case used the comparison between the foster parent and the biological parents to highlight Corey’s emotional and development needs as outlined by Keniston.28 In her reports, Keniston repeatedly highlighted that several of the TFT program’s goals were to ‘‘crеate a physical and emotional environment’’ for Corey, and to ‘‘establish developmentally appropriate routines that improve attachment . . . .’’ Therefore, the reference to the lack of affect Corey showed with the mother, compared to the warmth and attachment he showed with the foster parent, was used not to opine that the foster parent ought to be the person to meet Corey’s needs but, rather, was made on the basis of what the TFT professionals determined were Corey’s specific needs. Further, the court’s comparison should not be viewed in isolation because the court’s analysis, as a whole, focused on Corey’s needs and the biological parents’ inability to meet those needs. For example, the court also referenced that, on the basis of Randall’s report, ‘‘[h]ands-on parenting was also necessary, with a focus for [the] mother on attachment’’ but that Randall ‘‘did not feel [that] either parent was invested in the extra work it takes to create an attachment.’’ Accordingly, we conclude that the court’s comparison between the foster parent and the biological parents was not improper.
The judgment is affirmed.
In this opinion the other judges concurred.
KELLER, J.