IN RE KASMAESHA C. ET AL.*
(AC 35811)
Appellate Court of Connecticut
Argued January 6—officially released February 28, 2014**
148 Conn. App. 666
Lavine, Beach and Lavery, Js.
* In аccordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79a-12, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court. ** February 28, 2014, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.
of interest to avoid a finding of abandonment. Additionally, the court noted that the respondent never attempted to send a letter to the child to let him know that the respоndent was “ok” and that he would contact the child when possible. We conclude these factors support the finding of abandonment.
We also reject the respondent‘s argument that the time period of 142 days that he had fled the jurisdiction is insufficient to find abandonment. As correctly noted by the petitioner,
The judgment is affirmed.
In this opinion the other judges concurred.
Susan T. Pearlman, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Benjamin Zivyon and Michael Besso, assistant attorneys general, for the appellee (petitioner).
Opinion
LAVERY, J. The respondent mother1 appeals from the judgments of the trial court terminating her parental rights as to her minor children, K and Z. The respondent claims: (1) due process required that the trial court grant her a continuance and an opportunity to regain her competency so that she could assist in the defense of the action; (2) the court‘s use of the findings in the competency evaluation as evidence that she failed to achieve personal rehabilitation violated Practice Book
The following facts and procedural history are relevant to this appeal. K was born
On March 5, 2011, the petitioner, the Commissioner of Children and Families (commissioner) invoked a ninety-six hour hold on behalf of the children pursuant to
On September 19, 2011, the respondent was hospitalized for a second time after a social worker, calling on behalf of the Department of Children and Families (department) to confirm her next visit with her children, found it apparent that she was confused and psychotic, and upon referral to a mental health center, she was found to be disorganized and suicidal. She was evaluated and admitted to the psychiatric ward. Upon discharge, she was referred to outpatient programs in Bridgeport; however, despite assistance from the department, the respondent missed numerous intake appointments, and eventually showed up at a rescheduled appointment to state that she did not need mental health treatment or medication. At this time, she continued to be unemployed and continued to live a transient lifestyle. She failed to attend supervised scheduled visits with the department despite the department‘s efforts to assist her by providing bus passes and transportation.
The children were adjudicated neglected on September 29, 2011. Specific steps for reunification were issued at the time that the order of temporary custody was sustained
On August 2, 2012, upon motion by the respondent‘s counsel, the court, Keller, J., ordered a competency evaluation of the respondent to determine whether a guardian ad litem should be appointed for her assistance. The evaluator, Edward Rabe, a psychiatrist, concluded that the respondent is “impaired by a thought disorder that affects her insight and decision-making abilities” and that, in Rabe‘s opinion, her “impairment renders her incompetent to assist her attorney in her own defense.” Rabe further determined that “[w]hile [the respondent‘s] impaired functioning may be due in part to language barrier and/or medication side effect, she does exhibit a global deficit in her ability to produce goal directed thinking. Such deficit is due to major mental illness and is persistent. There is no intervention that would restore her to competency in this area.” On February 5, 2013, the court, Dannehy, J., found the respondent not competent and not restorable to competency, and appointed her a guardian ad litem to assist her attorney in the defense of the commissioner‘s petition.
In September, 2012, the respondent was hospitalized for a third time after exhibiting out of control behavior at her sister‘s apartment in Bridgeport, such as telling her sister that she could see her social worker on television, hitting herself, and yelling at those around her, including her sister‘s children. She was admitted to a hospital and was diagnosed with schizophrenia. She was discharged to a partial hospitalization program. She began to cooperate with treatment. At the time of trial, she received mental health treatment five times a week, which included individual therapy, group therapy, and medication management. A visiting nurse came to her home twice a day to administer medication, and she received monthly injections of Haldol.
From the date that her children were removed until the date that the commissioner filed the termination of parental rights petitions, the respondent reported approximately twelve different residences. She claimed to have lived with friends, relatives, and shelters, and to have moved between Hartford, Bridgeport, Florida, and Glastonbury, residing in each location for variable durations. She recently signed a lease for an apartment in Bridgeport, but it is without furniture, and its monthly rent exceeds her income. She shares the apartment with her current boyfriend who is a convicted felon with a record of domestic violence. His name does not appear on the lease. The respondent is not employed and her income consists of $700 a month in social security supplemental security income benefits.
At trial, the respondent was represented by counsel as well as a guardian ad litem. The respondent‘s representаtives never filed a motion for a continuance or a motion for a second competency hearing. On May 31, 2013, in a memorandum of decision, the court, Dannehy, J., sua sponte reviewed the procedural safeguards outlined in Mathews v. Eldridge, 424 U.S. 319, 332-35, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), and determined that the due process protections to which the respondent was entitled were provided, and that the case properly proceeded to trial because the evidence indicated that the “remote possibility” of an erroneous termination decision was “greatly outweighed by the [children‘s] needs [as well as] the opportunity for counsel and her guardian to prepare . . . for the trial.” The court then turned to the merits of the petitions and determined that the commissioner establishеd
I
The respondent first claims that the court erred in failing sua sponte to order a continuance. Speсifically, she argues that she exhibited progress in the maintenance of her life and her mental health, such that due process required the court sua sponte to order a continuance so that she could continue to improve to a point where she could assist in her defense. We disagree.
“In the termination [of parental rights] setting, only
“In some cases, the appointment of a guardian ad litem might well constitute the best available procedure and be in accord with due process. In others, the court might conclude that a guardian ad litem alone would not be sufficient to comport with due process because of the probability that a parent could be restored to competency within a relatively short period of time. Under the latter set of circumstances, the trial court might conclude that other such measures, including, possibly, a short stay of the termination proceedings, should be taken to prоtect the parent‘s fundamental right to care for his or her child.” In re Alexander V., supra, 223 Conn. 564. Nonetheless, “[c]ertainly it could not be expected that termination proceedings be stayed indefinitely, or for any great length of time in order to restore a parent to competency, as that would create too great a risk to the welfare of the child and might well create the anomalous situation where the very incompetency that makes termination imperative, prevents it.” Id., 565 n.7.
These principles are embodied in Practice Book
Here, after а competency hearing, the court found the respondent to be incompetent, and that her competency could not be restored. The respondent did not challenge this finding. The court appointed a guardian ad litem on her behalf, and proceeded to trial. The court‘s actions were in accordance with
The court‘s competency determination was based upon Rabe‘s evaluation, who concluded that the respondent‘s “answers suggest a more fundamental defect in her thinking, leading to the conclusion that she suffers from a persistent disorder in thinking commonly seen in [s]chizophrenia.”6 To overcome such a determination, the evidence before the court must have raised a reasonable doubt as to the respondent‘s inability to recover, such that the court should have ordered a new competency evaluation and competency hearing. Practice Book
The respondent fails to cite any substantial evidence in the record that would demonstrate that the court abused its discretion in this case. The respondent does not challenge the court‘s February 5, 2013 finding that she is not competent and not restorable to competency. Instead, the respondent now claims that, by the time of trial, she exhibited behavior consistent with the restоration of competency, such that the court should have ordered a stay in the proceedings. Specifically, she alleges that “the trial court took no account of the remarkable progress and consistency [the respondent] had demonstrated from the time of the evaluation through the present time.” The respondent has failed, however, to detail specific factual allegations that, if true, indicate that she could be restored to competency “within a reasonable time.” Practice Book
II
The respondent next claims that the court improperly used her competency evaluation as evidence that she failed to achieve rehabilitation within a reasonable time. Specifically, she asserts that, because the court‘s order limited the scope of the evaluation to a determination of her competency to аssist at trial, pursuant to Practice Book
Our review of the record reveals that the respondent‘s counsel stated at trial that he had no objection to the admission of the competency evaluation as a full exhibit and without restrictions. Accordingly, the respondent cannot now claim that the court‘s reliance on the evaluation for anything other than competency would be a violation of Practice Book
As her final claim, the respondent asserts that there was insufficient evidence to support the court‘s finding that she failed to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, she could assume a responsible position in the lives of her children, pursuant to
Section
“We are mindful that [p]ersonal rehabilitation as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent. . . . Additionally, the court must analyze the respondent‘s rehabilitative status as it relates to thе needs of the particular child . . . . Finally, we note that [i]n 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 [or children] at issue.” (Citations omitted; internal quotation marks omitted.) In re Alison M., 127 Conn. App. 197, 206-207, 15 A.3d 194 (2011); see also In re Kristy A., 83 Conn. App. 298, 318, 848 A.2d 1276 (“even if a parent has made successful strides in her ability to manage her life and may have achieved a level of stability within her limitations, such improvements, although commendable, are not dispositive on the issue of whether, within a reasonable period of time, she could assume a responsible position in the life of her child” [internal quotation marks omitted]), cert. denied, 271 Conn. 921, 859 A.2d 579 (2004).
The respondent‘s presenting issues at the time of her children‘s removal were her mental health, her parenting skills, and her transient housing. The court detailed in its memorandum of decision that first, as to housing, the respondent was transient when the commissioner filed the petitions, and while she had obtained an apartment by the time of trial, she nevertheless lacked employment, furniture, and the income to pay its rent, and she was living with a convicted felon with a record for domestic violence. Second, as to her parenting skills, the respondent attended twenty-two of seventy possible supervised visitations with her children prior to the filing of the petitions, during which the respondent was оften directed by supervisors to pay attention to her children and to act in an appropriate manner. Since the filing of the petitions, the respondent completed a parenting program “and due to the extraordinary efforts of her [department] social worker has been consistent in visiting the children.” Finally, as to her mental health, the respondent was hospitalized
The respondent now asserts that the court‘s finding of failure to rehabilitate is undermined by its reliance on the findings in the competency evaluation. She points to the conclusion of the court‘s opinion, where the court acknowledged the respondent‘s improvement, but then detailed that “it [could not] ignore the findings in the competency evaluation that there is a chronic defect in her ability to use goal directed thinking to solve problems and that she suffers from a thought disorder that results in global impairment of her ability to develop insight and problem solve. Any progress that she has made is a case of too little too late to allow the court to find that she has rehabilitated within the meaning of the statute.” The respondent alleges that the court‘s use of Rabe‘s findings as evidence of her failure to rehabilitate was outside of the court‘s ordinary knowledge and experience, such that expert testimony was required. The respondent further asserts that, absent the competency evaluation, there was no evidence to support the court‘s finding of failure to rehabilitate. We are not persuaded. We begin by setting forth the applicable standard of review. “On appeal, we 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. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. . . . [O]n review by this court every reasonable presumption is made in favor of the trial court‘s ruling. . . . A finding [of fact] is clearly erroneous when either there is no evidence in the record to support it, or the reviewing court is left with a definite and firm conviction that a mistake has been made. . . . [G]reat weight is given to the judgment of the trial court because of [the trial court‘s] opportunity to observe the parties and the evidence.” (Citation omitted; internal quotation marks omitted.) In re Alison M., supra, 127 Conn. App. 207.
The competency evaluation was admitted into evidence without limitation, and therefore, as detailed in part II of this opinion, the court was free to credit Rabe‘s findings “for whatever they are worth on their face.” (Internal quotation marks omitted.) In re Brianna L., supra, 139 Conn. App. 251. “Although expert testimony may be accorded great weight when it is offered, there is no requirement for expert testimony in termination of parental rights cases.” In re Jeisean M., 270 Conn. 382, 400, 852 A.2d 643 (2004); see also In re Angela C., 11 Conn. App. 497, 498-99, 528 A.2d 402 (1987) (trial court was not required to accept expert‘s opinion on issue of whether to terminate parental rights nor was testimony of another expert required to support court‘s judgment); In re Teshea D., 9 Conn. App. 490, 493, 519 A.2d 1232 (1987) (finding no merit to respondent‘s claim that expert testimony was required to support court‘s finding that termination was in child‘s best interest because “[a]lthough both our Supreme Court and this court have often, in this regard, looked to the testimony of mental health experts . . .
Nonetheless, the court‘s memorandum of decision is clear that the competency evaluation was not the sole evidence of the respondent‘s failure to rehabilitate. Instead, it is evident from the court‘s decision that Rabe‘s findings served as the backdrop to the court‘s review of the respondent‘s behavior. The court‘s decision indicates that it did not infer anything beyond the actual findings of Rabe, namely, that the respondent permanently suffers from a thought disorder that globally affects her ability to form goal directed thinking and to problem solve. Such a use of the competency evaluation is well within the court‘s fact finding power and authority. See, e.g., In re Alexander T., 81 Conn. App. 668, 676, 841 A.2d 274, cert. denied, 268 Conn. 924, 848 A.2d 472 (2004).
On the basis of the record before us, we conclude that the court‘s finding regarding the respondent‘s failure to achieve sufficient personal rehabilitation was not clearly erroneous. There was sufficient evidence to support the court‘s finding and we are not left with a definite and firm conviction that a mistake has been made. Accordingly, we conclude that the trial court did not err in granting the petition to terminate the respondent mother‘s parental rights.
The judgments are affirmed.
In this opinion the other judges concurred.