Lead Opinion
Opinion
The following facts and procedural history are relevant to our review. The respondent was bom in Hartford in 1989. The respondent’s mother had a history of substance abuse, and the respondent was raised by her grandmother. The department’s involvement with the respondent began when she was a teenager. At that time, the respondent had mental health and behavioral problems.
Femando and Jason were bom less than one year apart in 2006 and 2007, respectively.
Both prior to and after the removal of the children from the respondent’s custody, the department provided the respondent with services dealing with her mental health, substance abuse, parenting education and housing issues and needs. A series of department social workers worked with the respondent to reunite the family. Additionally, after the children were removed from her care and custody, the department provided visitation services to the respondent in a variety of venues with varying degrees of supervision.
In addition to direct services, the department offered the respondent support and services from other agencies. From
In October, 2008, the respondent participated in a court-ordered evaluation by Logan L. Green, an expert in forensic and clinical psychology. Green reported that the respondent had achieved a wide range of scores on various performance criteria. The respondent’s verbal IQ was 77, which ranked at the sixth percentile and is classified as “borderline.” The respondent’s performance IQ was 103, which ranked at the fifty-eighth percentile and is classified as “normal fimctioning.” Green concluded that “[a] verbal-performance difference of this size is suggestive of learning disabilities, poor academic achievement, poor reading ability, and at times left hemisphere or diffuse brain damage.” Green also noted that the respondent’s “exceptional guardedness and extremely idealized self-presentation prevents interpretation of her capacity for bonding. Therefore, the extent to which she is capable of offering relatively consistent parental love could not be determined.” Green diagnosed the respondent with anxiety disorder with compulsive defenses, dysthymic disorder and obsessive-compulsive disorder. Green recommended that the respondent be evaluated to determine whether she had attention deficit hyperactivity disorder [ADHD] and that she receive psychological treatment with appropriate medication therapy, academic and vocational training, rehable support from family and practical training to plan and monitor solutions to everyday problems. Green also recommended a parenting education program called Parent/Child Interactive Therapy (parenting program) in which the respondent would be observed interacting with her children through a one-way mirror while being directed by the observer through the use of an earpiece. Green, however, was not sure if the parenting program would be an available option and stated that “parenting training that allows for feedback immediately after the interaction session . . . would certainly be acceptable.”
Following Green’s evaluation and report, the department recommended to the respondent that she attend the intensive outpatient program at the Rushford Center, where she began receiving services in February, 2009.
The department then asked that the Rushford Center prepare another intake evaluation on May 14, 2009, because of the respondent’s acknowledged use of marijuana. The respondent was tested for marijuana on twenty occasions between October 3, 2008, and December 15, 2009. Five of those test results were positive and fifteen were negative. The respondent acknowledged that she had begun using marijuana when she was twelve years old and that she continues to use it.
The respondent also attended sessions at Family Matters, a center for child visitation and clinical parenting consultation, from April 9 to May 28, 2009. Family Matters provided supervised visitation with a parent education and feedback component. Family Matters also recommended that the department follow steps “to assure a safe and positive transition for Jason and Fernando to [the respondent’s] home” and noted the respondent’s “significant progress.”
Approximately sixteen months after the children were placed in the custody of the petitioner, on June 8, 2009, the petitioner filed petitions to terminate the parental rights of the respondent and the father as to Fernando and Jason. Pursuant to General Statutes § 17a-112 (j), the petitioner alleged that the department had made reasonable efforts to reunify each of the children with the respondent, termination was in the best interest of each of the children and, pursuant to § 17a-112 (j) (3) (B), the children previously were adjudicated neglected in a prior proceeding and that the respondent had failed to achieve a degree of personal rehabilitation as would encourage the belief that, within a reasonable time, considering the age and needs of each of the children, the respondent could assume a responsible position in their lives.
After the petitioner filed the termination of parental rights petitions, the department continued to provide services to the respondent. From August 7 to November 7, 2009, the respondent received services at Community Residences, Inc., a family reunification and preservation program supported by the department. Community Residences, Inc., provided the respondent with supervised visitation, parent education and feedback. Community Residences, Inc., continued to work with the respondent through February, 2010. Its final evaluation and recommendation described the respondent’s “moderate improvements” in utilizing parenting techniques. The respondent indicated that she felt “badly about providing consequences for inappropriate behaviors” by her children because she believed the purpose of the visits was to “provide a fun and enjoyable experience for her children.” The respondent believed that the children displayed inappropriate behavior because her authority was undermined by the presence of the social worker giving her directions. The social worker transitioned visits from the community to the department offices when the children’s behavior became “unsafe or unmanageable . . . .” Community Residences, Inc., found that the children’s behavior was easier to manage in a controlled environment and that it was significantly more appropriate while in the care of the foster mother.
The record also reveals the following. On some occasions, the respondent chose not to participate in programs to which she was referred by the department. For individual counseling, the department referred the respondent to Community Health Center and to Path, but she did not follow up with the referrals. The respondent eventually attended Community Health Center for mental health treatment, but missed her initial intake appointment in July, 2009, and did not complete the intake until August, 2009. The respondent missed several of her scheduled sessions at Community Health Center. The department also referred the respondent to domestic violence programs. She was referred to Chrysalis for a support group that she never attended and to Catholic Charities for a support group that she attended briefly.
The respondent’s housing situation varied throughout the progress of this case. In January, 2008, the respondent was being evicted from her apartment. The department located a shelter for the respondent and her children, but, after a couple of days, the respondent refused to stay there with the children. Following the children’s removal from her on January 28, 2008, the respondent became transient and stayed with friends. The department thereafter referred the respondent to the Supportive Housing Program. During the summer of 2008, the department paid a security deposit so the respondent could obtain an apartment. The respondent was unable to maintain this apartment and was evicted in January, 2009, for nonpayment of rent. The respondent then secured a one bedroom apartment through supportive housing.
On August 16, 2010, pursuant to Practice Book §§ lili, 34a-l (b) and 63-1, the respondent filed a motion for reconsideration, reargument and/or articulation, arguing, inter alia, that the court’s statement that “ ‘[the respondent] had not made significant progress to persuade the court by clear and convincing evidence that she had met the objectives identified by Dr. Green as important for reunification’ ” indicates that the court improperly shifted the burden of proof on the issue of personal rehabilitation to the respondent. After oral argument on September 3, 2010, the court, on September 24, 2010, issued a written decision that denied the relief sought on reargument and reconsideration. In the decision, the court agreed with the respondent that some of the language of the memorandum of decision “suggested] a shifting of the burden of proof to [the respondent].” The court stated, however, that its “intention was to conclude that [the respondent] had an obligation to meet the requirements of her specific steps in order to be reunited with her two sons. Those steps included the following requirements: 1. Submit to substance abuse assessment and follow recommendations regarding treatment, including in-patient treatment if necessary, aftercare and relapse prevention; 2. Submit to random drug testing—time and method of the testing shall be at the discretion of [the department];
I
The respondent claims that the trial court erred by improperly shifting the burden of proof to her on the issue of personal rehabilitation. She further argues that, in its subsequent articulations, the court improperly departed from the reasoning contained in the memorandum of decision and that the articulations and the memorandum of decision were in contradiction. We disagree.
“When a party contests the burden of proof applied by the trial court, the standard of review is de novo because the matter is a question of law.” Cadle Co. v. D'Addario,
First, we note that, even when taken in isolation from the rest of the memorandum of decision, the statement that the respondent “had not made significant progress to persuade the court by clear and convincing evidence that she had met the objectives identified by Dr. Green as important for reunification” does not imply necessarily that the court shifted the burden
Furthermore, reviewing the court’s decision in its entirety, it is evident that the court required the petitioner to prove her case by the clear and convincing evidence standard of proof. On the first page of the memorandum of decision, the court states that “[i]n order to prevail on its allegations with respect to termination of [a] parent’s rights, the attorney general must prove by clear and convincing evidence that . . . [the respondent 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 children, such [parent] could assume a responsible position in the life of the children . . . .” The court then enumerates the services that the department offered to the respondent, the respondent’s efforts to comply with the services, the respondent’s deficiencies in compliance and the respondent’s consequent lack of progress toward rehabilitation. The court then states that “[w]ith respect to [the respondent] the court finds that [the petitioner] has proved by clear and convincing evidence that [the] [c]hildren have been found to have been neglected in a prior proceeding and [that the respondent] has failed to achieve such [a] degree of personal rehabilitation as would encourage the belief that within a reasonable time . . . she could assume a responsible position in [the] children’s lives.” See General Statutes § 17a-112 (j) (3) (B). This language evinces the court’s recognition that the burden of proof was on the petitioner, that it required the petitioner to meet that burden, and that the petitioner did meet that burden.
In a similar fashion, we have analyzed the memorandum of decision at issue in the present case in its entirety and conclude that the court did not shift the burden of proof onto the respondent with respect to the adjudicatory ground of failure to rehabilitate or the dispositional ground of best interests of the children.
Because she recognized that the statements she challenged arguably might be susceptible to differing interpretations, the respondent requested that the court, inter alia, articulate the meaning of the language employed. “It is well established that a motion for articulation may be used to clarify the factual or legal basis of the trial court’s ruling.” Walshon v. Walshon,
In response to the respondent’s request, the court, inter alia, agreed with the respondent that some of the language of the memorandum of decision “suggested] a shifting of the burden of proof to [the respondent].” The court stated, however, that its “intention was to conclude that [the respondent] had an obligation to meet the requirements of her specific steps in order to be reunited with her two sons . . . [and that] [t]he record demonstrates her repeated resistance to full cooperation with offered [department] services to a successful
After filing the present appeal, the respondent again asked the court to articulate whether it improperly had shifted the burden of proof to her. In response, the court again articulated that the language it had used “suggests] the alleged shift of burden.” It explained, however, that “the decision read in its entirety clearly articulates . . . the court’s conclusion that [the department] provided [the respondent] with the opportunity and services necessary to address the issues upon which the original commitment was based, and [that the respondent] failed to take full advantage of those services or rehabilitate to a degree that reunification was appropriate. The court’s decision, taken as a whole, finds that [the department] made reasonable efforts to reunite [the respondent] and the children and that termination of her parental rights was in [the] children’s best interest.”
Although the respondent argues that the court’s articulations were an improper revision of its memorandum of decision, we do not agree. As stated previously, read as a whole, the court’s memorandum of decision clearly sets forth that the petitioner has the burden of proof by clear and convincing evidence to prove the adjudicatory ground of the respondent’s failure to rehabilitate and the dispositional ground that termination of parental rights is in the best interest of the child, and that the petitioner met those requirements. The articulations served to further clarify that the court had employed the correct standard.
In Walshon v. Walshon, supra,
The respondent also argues that the court’s articulations conflict with its memorandum of decision in which it stated that the respondent “has made significant efforts to comply with her court-ordered specific steps.”
The allegedly contradictory statements in the memorandum of decision were intended to credit the respondent for showing some progress with rehabilitation efforts. However, the respondent was unable “to sustain her commitment and create a welcome and secure permanent environment” for the children.
II
The respondent also claims that the court erred in concluding that the department had made reasonable efforts to reunify the respondent and her children. We disagree.
“In order to terminate parental rights under § 17a-112 (j), the department is required to prove, by clear and convincing evidence, that it has made reasonable efforts ... to reunify the child with the parent, unless the court finds . . . that the parent is unable or unwilling to benefit from reunification .... [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. . . . [Reasonable 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. . . . A finding is clearly erroneous when either there is no evidence in the record to support it, or the reviewing court is left with the definite and firm conviction that a mistake has been made.” (Citation omitted; internal quotation marks omitted.) In re Devon W.,
In its memorandum of decision, the court found that the department had made reasonable efforts to reunite the respondent with her children. The record supports the court’s conclusion that the respondent “was offered and [the department] provided services dealing with mental health, substance abuse, parenting and housing [issues].”
The respondent argues that the department’s efforts fell short of what was reasonable because the department did not provide her with the type of parenting program recommended by Green in his October, 2008 evaluation. Green recommended that the respondent participate in a program where an observer would take notes during the visit and review the appropriateness of her conduct and provide her with suggestions for the next visit. Green recommended a parenting program from a specific provider, in which the respondent would be observed interacting with her children through a one-way mirror while being directed by the observer through the use of an earpiece, but he also suggested that any “parenting training that allows for feedback immediately after the interaction session . . . would certainly be acceptable.” Green testified at trial that “having an observer who simply observed and then gave feedback at the end, allowing [the respondent] to take written notes and then going over those notes, allowing [the respondent] to do homework, essentially, by following or reviewing the notes; that would be all right.” The department contacted the recommended parenting program provider and learned that the agency had a long waiting
The respondent also argues that the department failed to make reasonable efforts to reunify her with her children because, in his October, 2008 report, Green recommended an evaluation of the respondent to determine if she had ADHD and the evaluation was not completed until a year later.
We are mindful that “[Reasonable efforts means doing everything reasonable, not everything possible.” (Internal quotation marks omitted.) In re Samantha C.,
Furthermore, the record is replete with examples of what the court described as the respondent’s “clumsy” relationship with the department. The record reveals that the delay in the respondent’s ADHD evaluation was due, in part, to the respondent’s own lack of engagement in the rehabilitation process. In viewing the record in its entirety, we are not persuaded that the court’s finding that the department had made reasonable efforts to reunite
Ill
The respondent’s final claim is that the trial court erred in finding that she failed to achieve personal rehabilitation. We disagree.
In order to terminate parental rights under the adjudicative ground set forth in § 17a-112 (j) (3) (B), the petitioner is required to prove, by clear and convincing evidence that “the child . . . has been found by the Superior Court or the Probate 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 . . . 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 . . . .”
“[W]e review a trial court’s finding that a parent has failed to rehabilitate herself in accordance with the rules that apply generally to a trier’s finding of fact. We will overturn such a finding of fact only if it is clearly erroneous in light of the evidence in the whole record. . . . [GJreat weight is given to the judgment of the trial court because of [the court’s] opportunity to observe the parties and the evidence. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. . . . [0]n review by this court every reasonable presumption is made in favor of the trial court’s ruling.” (Internal quotation marks omitted.) In re Jordan T.,
We have reviewed the record and conclude that it supports the court’s conclusion that the respondent failed to achieve a degree of personal rehabilitation as would encourage the belief that, within a reasonable time, considering the ages and needs of the children, the respondent could assume a responsible position in the children’s lives. The record indicates that, at the time of trial, the respondent continued, inter alia, to have difficulties with parenting the children and regulating their behavior when she was with them, with her suggested medication regimen and management, and with marijuana use. While the record suggests that the respondent, after the children were committed to the petitioner, made some progress in her ability to care for herself, “in assessing rehabilitation, the critical issue is not whether the parent has improved her ability to manage her own life, but rather whether she has gained the ability to care for the particular needs of the child at issue.” (Internal quotation marks omitted.) In re Shyliesh H.,
Furthermore, in its memorandum of decision, the trial court put particular emphasis on the opinion of Green concerning the respondent’s issues, limitations and need for personal rehabilitation before she could provide a continuous safe, secure and stable environment for the children.
In light of the record, we conclude that the evidence supports the trial court’s finding by clear and convincing evidence that the respondent had failed to achieve a level of rehabilitation that would encourage the belief that, within a reasonable time, considering the children’s ages and needs, she could assume a responsible position in the lives of her children and, therefore, the court’s finding was not clearly erroneous. We also conclude that the court’s finding by clear and convincing evidence that termination of the respondent’s parental rights was in the best interests of the children was supported by the evidence and was not clearly erroneous.
The judgments are affirmed.
In this opinion DUPONT, J., concurred.
Notes
The court also terminated the parental rights of the respondent father of the children at issue. The respondent father has not appealed from the judgments of the trial court with respect to his parental rights. We, therefore, refer to the respondent mother as the respondent.
The respondent has another child, J, to whom she gave birth in May, 2005. The respondent was unable to care for J, and the respondent’s grandmother became J’s legal guardian. The respondent still maintains a relationship with J, who is not a party to these proceedings.
The respondent was fifteen years old when J was bom; see footnote 2 of this opinion; sixteen years old when Fernando was bom and seventeen years old when Jason was bom.
The Rushford Center previously had provided mental health services to the respondent after a declaration that she would commit suicide if the children were taken by the department. The respondent claims that the statement was an exaggeration designed to persuade the department not to take the children.
At trial, the petitioner noted that if the respondent was found to be abusing substances and not cooperating with department services, she would be noncompliant with the requirements of supportive housing.
General Statutes § 17a-112 (k) provides in relevant part: “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent ... (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order . . . and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.”
As set forth in the court’s memorandum of decision, the “permanency decisions” referred to by the court were termination of the respondent’s parental rights and adoption of the children. “Continued contact” by a biological parent after termination of parental rights is sometimes referred to as “open adoption.” See In re Samantha S.,
The respondent filed another motion for articulation on November 10, 2010. The court then issued a further articulation dated December 28, 2010, in which it stated that the memorandum of decision “read in its entirety clearly articulates that the court’s conclusion that [the department] provided [the respondent] with the opportunity and services necessary to address the issues upon which the original commitment was based, and [that the respondent] failed to take full advantage of those services or rehabilitation to a degree that reunification was appropriate.”
The court made this statement in connection with the findings required to be made by § 17a-112 (k) (1). See footnote 6 of this opinion. The court stated in full: “1. [The respondent] and [the children’s father] were offered services specific to their needs and deficits in a timely manner. [The children’s father] consistently refused services since the beginning of [department] involvement. [The respondent] was offered and [the department] provided services dealing with mental health, substance abuse, parenting and housing. Although [the respondent] has worked hard to take advantage of those services and has completed some of them, she has not established to the court’s satisfaction that she is prepared educationally or emotionally to assume the primary care role of caring for her children.” Although not mentioned by the respondent in her brief, these findings were made in connection with whether termination of parental rights is in the best interest of the child, e.g., in the dispositional phase of the trial. See In re Sarah O.,
We note that Green’s recommendations generally focused on how to achieve the respondent’s parenting and individual therapy goals. However, in the respondent’s specific steps that were ordered by the court for the goal of reunification; see, e.g., General Statutes § 46b-129 (c) and (j); the court instructed the respondent to meet additional goals including, inter alia, “[k]eep all appointments set by or with [the department],” “participate in counseling and make progress toward” parenting and individual treatment goals, “[s]ubmit to substance abuse assessment and follow recommendations regarding treatment, including in-patient treatment if necessary, aftercare and relapse prevention,” “secure and/or maintain adequate housing and legal income,” and “[n]ot engage in substance abuse.” The petitioner introduced evidence that the respondent was regularly self-medicating with marijuana, that the respondent believed that she did not need to take the medication that had been prescribed to her, was having difficulty maintaining housing consistently and failed to keep appointments set by the department. Even if we assume that the court improperly placed the burden of proof on the respondent with respect to Green’s recommendations, the petitioner introduced ample evidence both to demonstrate to the court and to allow the court to find, by clear and convincing evidence, that the respondent had failed to rehabilitate.
The context of the § 17a-112 (k) (1) required finding in which the challenged language appears in relevant part is as follows: “[The respondent was] offered services specific to [her] needs and deficits in a timely manner. . . . [The respondent] was offered and [the department] provided services dealing with mental health, substance abuse, parenting and housing. Although [the respondent] has worked hard to take advantage of those services and has completed some of them, she has not established to the court’s satisfaction that she is prepared educationally or emotionally to assume the primary care role of caring for her children.” As with the first challenged statement of the court, although the court’s language is not as clear as it could be, the context of the second challenged statement is the evidence in the record about the respondent, her history, problems, successes, failures, needs, circumstances, compliance or lack thereof, most of which was provided by the petitioner, and not that the respondent had an independent burden of proof to be satisfied by her testimony or by other evidence in her favor and judgment was entering against her because she failed to do so.
General Statutes § 17a-112 Q) provides in relevant part: “The Superior Court, upon notice and hearing as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that (1) the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent in accordance with subsection (a) of section 17a-l 1 lb, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts, except that such finding is not required if the court has determined at a hearing pursuant to section 17a-lllb, or determines at trial on the petition, that such efforts are not required, (2) termination is in the best interest of the child, and (3) . . . (B) the child (i) has been found by the Superior Court or the Probate Court to have been neglected or uncared for in a prior proceeding, or (ii) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months 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 . . . .”
The respondent further argues that these statements indicate that the court improperly drew an adverse inference against her at trial because of her failure to testify without properly notifying her that such an inference could be drawn. The respondent claims that this is a violation of Practice Book § 35a-7A, which states that “[i]f a party requests that the judicial authority draw an adverse inference from a parent’s or guardian’s failure to testify or the judicial authority intends to draw an adverse inference, either at the start of any trial or after the close of the petitioner’s case-in-chief, the judicial authority shall notify the parents or guardian that an adverse inference may be drawn from their failure to testify.” See also In re Samantha C.,
Unfortunately, also, not every effort to comply results in meaningful substantive compliance.
A “secure permanent environment” and other aspects of a child’s best interests have been repeatedly described in our opinions as follows: “In the dispositional phase of a termination of parental rights hearing, the emphasis appropriately shifts from the conduct of the parent to the best interest of the child. ... It is well settled that we will overturn the trial court’s decision that the termination of parental rights is in the best interest of the children only if the court’s findings are clearly erroneous. . . . The best interests of the child include the child’s interests in sustained growth, development, well-being, and continuity and stability of [his or her] environment. . . . In the dispositional phase of a termination of parental rights hearing, the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent’s parental rights is not in the best interest of the child.” (Emphasis added; internal quotation marks omitted.) In re Sarah O.,
These statements are in sharp contrast with the court’s statements regarding the children’s father, who “has not been a meaningful part of [the] children’s lives. Any attempt to develop a relationship between [the] [f]ather and [the] children would be contrary to [the] children’s best interest.”
To support her argument that the court improperly shifted the burden of proof on the issue of personal rehabilitation, the respondent relies on In re Zamora S.,
At Family Matters, the respondent visited with the children while a therapist observed them through a one-way mirror. Following the visit, the therapist would meet with the respondent and review the interactions between the respondent and the children.
Following the evaluation, Green was able to rule out ADHD.
In its memorandum of decision, the court noted that Green’s psychological evaluation report was a “compelling document.”
Dissenting Opinion
dissenting. I respectfully dissent because I conclude that the trial court improperly shifted the burden of proof on the issue of personal rehabilitation to the respondent mother. Accordingly, I would reverse the judgments of the trial court and remand the case for a new trial.
As a preliminary matter, I take a moment to emphasize the judicial lens through which I believe we must review the court’s decision. “The termination of parental rights is defined as the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his parent .... It is a most serious and sensitive judicial action. . . . Although that ultimate interference by the state in the parent-child relationship may be required under certain circumstances, the natural rights of parents in their children undeniably warrants deference and, absent a powerful countervailing interest, protection.” (Citations omitted; internal quotation marks omitted.) In re Juvenile Appeal (Anonymous),
It is well established that “[i]n order to terminate a parent’s parental rights under [General Statutes] § 17a-112, the petitioner [the commissioner of children and families] is required to prove, by clear and convincing evidence, that: (1) the department has made reasonable efforts to reunify the family; General Statutes § 17a-112 (j) (1); (2) termination is in the best interest of the child; General Statutes § 17a-112 (j) (2); and (3) there exists any one of the seven grounds for termination delineated in § 17a-112 (j) (3).” (Emphasis added.) In re Samantha C.,
In terminating the respondent’s parental rights, the court found that “[a]s of the date of trial, [the respondent] had not made significant progress to persuade the court by clear and convincing evidence that she had met the objectives identified by Dr. [Logan L.] Green [a court-appointed psychologist] as important for reunification.” (Emphasis added.) The fulfillment by the respondent of the objectives identified by Green evidently was essential to determining whether the respondent had achieved a sufficient degree of rehabilitation, as was necessary for reunification with her children.
Due to the problematic nature of the court’s language, the respondent sought an articulation from the court. The court offered two articulations in an attempt to clarify the disputed language contained in its decision.
In my view, the articulations present new reasoning and a new basis to support the decision to terminate the respondent’s parental rights, namely, that the petitioner carried her burden of proving that the respondent had failed to achieve a sufficient degree of personal rehabilitation. “An articulation is not an opportunity for a trial court to substitute a new decision nor to change the reasoning or basis of a prior decision. ... If, on appeal, this court cannot reconcile an articulation with the original decision, a remand for a new trial is the appropriate remedy.” (Citation omitted; internal quotation marks omitted.) Lusa v. Grunberg,
I conclude, therefore, that the court improperly shifted the burden of proof on the issue of personal rehabilitation to the respondent and that the court’s articulations changed the basis of the original decision. Accordingly, I would reverse the judgments of the trial court and remand the case for a new trial.
In fact, the court found Green’s report to be a “compelling document.” Aside from Green’s report, the record indicates that, in determining whether the respondent had achieved a sufficient degree of personal rehabilitation, the court also relied on the petitioner’s evidence that the respondent had not fully complied with the court-ordered specific steps, including certain substance abuse orders.
As further evidence of this burden shift, the court states in its memorandum of decision that it found that the respondent had not “established to the court’s satisfaction that she is prepared educationally or emotionally to assume the primary care role of caring for her children.”
It is noteworthy that in both articulations, the court acknowledged that the language that it employed suggested that the burden of proof was on the respondent regarding the issue of personal rehabilitation. In its first articulation, the court stated that it “agrees that the language . . . suggests a shifting of the burden . ...” In its second articulation, the court stated that it “acknowledges that the specific language cited suggested the alleged shift of [the] burden.”