In re Kyara H.
David J. Reich, assigned counsel, for the appellant (respondent father).
Benjamin Zivyon, assistant attorney general, with whom were Susan T. Pearlman, assistant attorney general, and, on the brief, George Jepsen, attorney general, and Michael J. Besso, assistant attorney general, for the appellee (petitioner).
Raymond F. Parlato, for the minor children.
**January 16, 2014, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.
KELLER, J. The respondent father, Tyrone H., appeals from the judgments of the trial court, Hon. Francis J. Foley III, judge trial referee, terminating his parental rights with respect to his minor son, Jahein H., and minor daughter, Kyara H., pursuant to
The following facts, as found by the trial court by clear and convincing evidence, and procedural history are relevant to the disposition of this appeal. Andrea K., the mother of Kyara and Jahein, met the respondent when she was nineteen years old and soon became pregnant. Kyara was born on January 22, 2004. Tests for the presence of substances in her system were positive for the presence of marijuana, which Andrea admitted she used throughout her pregnancy. Andrea
Andrea gave birth to Jahein, her second child by the respondent, in that same year, on November 13, 2004. Tests revealed that Jahein also was exposed to marijuana during pregnancy. Two months after Jahein‘s birth, the respondent was arrested for an assault upon Andrea. Andrea stated that the respondent left her shortly after this incident and thereafter, did not acknowledge his children in any way. The respondent was later convicted of the assault and sentenced to one year in jail, execution suspended, with three years of probation. He later violated his probation and was incarcerated.
From May 6, 2005, until the spring of 2006, neither Kyara nor Jahein lived with Andrea. Kyara was residing with Leander and Jahein was in foster care, having been removed from Andrea‘s care by the department after Andrea, while extremely intoxicated and holding Jahein, lost her balance and fell, causing Jahein to hit his head. Andrea was arrested but participated in services and treatment programs, enabling Jahein to be returned to her care by the end of 2005.
In the summer of 2008, Andrea met another man, Jose M., and began a four year relationship marred by substance abuse and incidents of domestic violence. This relationship produced three more children.
On March 26, 2009, when Andrea was pregnant with the first of her three children by Jose, the petitioner, the Commissioner of Children and Families (commissioner), sought and obtained temporary custody of Kyara and Jahein due to their exposure to illegal substances, domestic violence and inadequate supervision in Andrea‘s home. Andrea and Jose participated in services resulting in the return of Kyara and Jahein in
In November, 2009, during the period of court-ordered protective supervision for Kyara and Jahein, Andrea was arrested for disorderly conduct and fined $200. This was her third arrest. The following month, Andrea‘s third child, Trevon, was born, with indications of exposure to marijuana in utero. On April 11, 2001, Andrea‘s fourth child, Kahlil, was born, also testing positive for exposure to marijuana during the pregnancy.3 Andrea acknowledged to the department that she used marijuana and alcohol throughout this pregnancy and admitted mutual domestic violence involving her and Jose. Andrea stated that she used marijuana daily and would drink two or three times per week, including two or three forty ounce bottles of beer and “a few shots.” From 2008 to 2012, while he was in a relationship with Andrea and was involved in raising her children, Jose bought, used and possessed illegal drugs. Jose reported that both he and Andrea smoked marijuana three to four times a day, even during Andrea‘s pregnancies.
Andrea reported that she and Jose also smoked K-2, an illegal, synthetic drug chemically similar to marijuana. This drug can be very potent and is popular with
The trial court relied on the October 14, 2011 affidavit in support of the commissioner‘s motion for temporary custody, in which the department social worker Michelle Dwyer “describes an horrific and chaotic home life for Andrea, Jose, the children and Andrea‘s alcoholic father, Leander.” In August, 2010, Jose assaulted Andrea in front of Kyara, Jahein and Trevon. Kyara reported to the police what had happened, stating, “Jose . . . punched mommy and dragged her on the floor. . . .”
On April 18, 2011, the commissioner filed neglect petitions on behalf of Kyara, Jahein and their two younger siblings, but did not seek their removal. In September, 2011, a behaviorist and clinician at Community Resources, Inc., who was providing services to Andrea, told a department social worker that Andrea said that Kyara roams the house in the middle of the night, urinating in her room and that Andrea feared leaving Kyara and Jahein unsupervised with one another because Kyara was engaging in inappropriate behaviors with Jahein. During an arrest for motor vehicle charges on September 30, 2011, Andrea became so agitated and combative with police she had to be secured in a jail cell. On October 12, 2011, a department social worker observed Trevon, then twenty-two months old, with two black eyes. Andrea and Leander indicated Trevon fell on a piece of furniture. The next day, Jose went to Andrea‘s home with a friend. Andrea had been drinking and continued to drink throughout the afternoon and evening. Jose and Andrea then went to a motel with Trevon and six month old Kahlil. Jose reported that Andrea was so drunk she dropped Kahlil
After specifically addressing Andrea and the children‘s involvement with the department since 2004, the court, as to the respondent, found that little is known about him because he refused to provide background information to the department and refused to participate in services to which the department might have referred him. The trial court, referring to the respondent as the “male biological parent,” determined: “He left Andrea shortly after he assaulted her in January, 2005. He has never served as a father, as that term is normally understood.” (Emphasis added.) The court further found: “What is known about this man is that between 2004 and 2010, he has been arrested nine times and spent a considerable amount of his adult life in prison. Even in prison he is not a good citizen. His Department of [Correction] record reflects loss of telephone privileges for thirty days, loss of recreation for fifteen days, and punitive segregation for seven days. . . . His arrest and conviction record . . . indicates that [the respondent] is a convicted felon. He has multiple arrests for assault, breach of peace, disorderly conduct, criminal
The respondent was released from prison in August, 2012, just a few weeks after the petitions to terminate his parental rights were filed on July 25, 2012. The court noted the respondent‘s shifting positions before and at trial relative to the placement of children, neither of which included any plan that he personally would care and provide for them. Nonetheless, “[t]o give full weight to all the evidence,” the court acknowledged the respondent‘s attendance at a New Perceptions sixteen class “Treating Alcohol Dependence Program,” in November, 2012. The court, to emphasize its conclusion that the respondent‘s lack of concern for his children was longstanding and continuing, indicated, “[t]here is nothing in the letter from New Perceptions [submitted as respondent‘s Exhibit 1A that] addresses whether [the respondent] ever expressed love and affection for his children; ever expressed personal concern over their health, education and general well-being; ever fulfilled his duty to supply the necessary food, clothing and
In the termination of parental rights petitions regarding the respondent‘s two children, the commissioner alleged that the respondent had failed to rehabilitate sufficiently and that termination of the parental rights was in the children‘s best interests. The commissioner also alleged, regarding the reasonable efforts requirement of
The court stated that “in the adjudicatory phase of the proceedings, the judicial authority is limited to evidence of events preceding the filing of the petition or the
In the dispositional phase of the proceeding,7 the court set forth its findings with regard to the seven factors set forth in
The court found by clear and convincing evidence that termination of the respondent‘s parental rights in Kyara and Jahein was in their best interests after considering various factors, “including the children‘s need
We begin by setting forth the statutory requirements for granting a petition for the termination of parental rights. “A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. . . . If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interest of the child.” (Citation omitted; internal quotation marks omitted.) In re Roshawn R., 51 Conn. App. 44, 52, 720 A.2d 1112 (1998). In the adjudicatory phase of the proceeding, the court must make separate determinations as to reasonable efforts and the statutory grounds for termination. “In the adjudicatory phase, the judicial authority is limited to evidence of events preceding the filing of the petition or the latest amendment, except where the judicial authority must consider subsequent events as part of its determination as to the existence of a ground for termination of parental rights. . . . In the adjudicatory phase, the court may rely on events occurring after the date of the filing of the petition to terminate parental rights when considering the issue of whether the degree of rehabilitation is sufficient to foresee that the parent may resume a useful role in the child‘s life within a reasonable time.” (Citation omitted;
As the statutory ground for terminating the respondent‘s rights, the petition alleged failure to achieve personal rehabilitation under
A termination of parental rights under
The factual determination for the court is whether the parent has achieved rehabilitation as contemplated under the statute, that is, rehabilitation sufficient to render the parent able to responsibly care for the child. “Personal rehabilitation as used in [
An inquiry regarding personal rehabilitation requires “a historical perspective of the respondent‘s child caring and parenting.” (Internal quotation marks omitted.) In re Galen F., 54 Conn. App. 590, 594, 737 A.2d 499 (1999); see In re Christopher B., 117 Conn. App. 773, 786-88, 980 A.2d 961 (2009) (trial court properly relied on respondent‘s history with department prior to filing of most recent neglect petition); see also In re Jennifer W., 75 Conn. App. 485, 499, 816 A.2d 697 (court must make inquiry into full history of respondent‘s parenting abilities), cert. denied, 263 Conn. 917, 821 A.2d 770 (2003).
As to the respondent, the court found by clear and convincing evidence that his children had been found neglected in a prior proceeding, that the department had made reasonable efforts to locate the respondent, that the respondent had been provided with specific steps on October 14, 2011, and later, on February 1, 2012, and that the respondent had failed to achieve such degree of personal rehabilitation that would encourage the belief that within a reasonable time, considering the age and needs of the children, he could assume a responsible position in their lives.
The respondent does not dispute any of these findings, nor does he dispute the court‘s findings that it
The respondent argues that although the department presented evidence that he told the department on three occasions prior to the filing of the termination petitions on July 25, 2012, that he was not interested in any department services, the department was required by the specific steps to continue to make efforts to refer the respondent to appropriate services until the trial concluded, and there was no evidence that the department even contacted him after his release in August, 2012, to inquire if he had changed his position of noncooperation with the department or its services. The commissioner responds that the evidence reasonably supports the court‘s findings that the department had made reasonable efforts to reunify the respondent with his children, regardless of whether the trial court considered evidence through the date the petitions were filed, July 25, 2012, the adjudicatory date, or through the conclusion of trial on February 21, 2013, because the law does not require a continuation of reasonable efforts on the part of the department when they will be futile.
In support of his claim, the respondent asserts that in accordance with
I
The respondent first argues that
“As this court has noted, [t]here is a distinction between a finding on reasonable reunification efforts under
“By contrast, [
“As noted, in determining whether the department has made reasonable efforts to reunify a parent and a child or whether there is sufficient evidence that a parent is unable or unwilling to benefit from reunification efforts, the court is required in the adjudicatory phase to make its assessment on the basis of events preceding the date on which the termination petition was filed. See also
The commissioner, however, concedes that, in the absence of a court order that otherwise relieves the department of its reasonable efforts obligation,
II
We now address the respondent‘s second argument, whether the evidence was sufficient for the court to find the department made reasonable efforts to reunify the respondent with his children.
Our Supreme Court in In re Melody L., 290 Conn. 131, 962 A.2d 81 (2009), set forth the standard for reviewing the trial court‘s finding that the department made reasonable efforts to reunify a parent and a child in a termination of parental rights case. “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. . . . On appeal, our function is to determine whether the trial court‘s conclusion was factually supported and legally correct. . . . In doing so . . . [g]reat 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. . . . [Rather] every reasonable presumption is made in favor of the trial court‘s ruling.” (Citations omitted; internal quotation marks omitted.) Id., 145.
The “reasonableness” of the department‘s efforts must be assessed in the context of each case. “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
This court has applied the general meaning of “reasonable” and stated that “[i]t is axiomatic that the law does not require a useless and futile act.” In re Antony B., 54 Conn. App. 463, 476, 735 A.2d 893 (1999). In In re Antony B., the trial court‘s findings that the department made reasonable efforts at reunification were upheld in light of the fact that the respondent rejected many of the services offered to her and did not choose to accept services from the department. See id. Several other cases involving appeals from termination of parental rights judgments have held that the department is not required to continue to provide reasonable efforts to a parent when the parent refuses to participate or engage in any of those efforts. See In re Christopher C., 134 Conn. App. 473, 481-82, 39 A.3d 1127 (2012) (despite department‘s repeated offers of referrals and assistance so respondent could satisfy specific steps requirements respondent refused to comply); see also In re Samantha C., 268 Conn. 614, 632-33, 847 A.2d 883 (2004) (not unreasonable for department to abandon reunification efforts when it did, given age and needs of the child, time allotted for the respondents’ rehabilitation and time child had spent in foster care); In re Daniel C., 63 Conn. App. 339, 362, 776 A.2d 487 (2001) (after respondents had not benefited from decade of efforts and services, it was not unreasonable for department to decline to pursue reunification as goal after children‘s final removal).
Initially, we observe that, to the extent that the assessment of reasonable efforts is made through the date of the filing of the termination petitions, the respondent concedes that the department‘s wholly unsuccessful efforts were reasonable. The record reflects that during the pendency of the earlier neglect petitions affecting Kyara and Jahein, filed in 2005 and 2009, the respondent was offered reunification services. On April, 11, 2011, neglect petitions were filed on behalf of Kyara and Jahein and their two younger siblings. At three separate times prior to the filing of the termination of parental rights petitions, the respondent expressly stated to the department worker his unwillingness to engage in any services. On April 25, 2011, prior to his incarceration, one week after neglect petitions for his children had been filed for the third time, and after he had been presented with preliminary specific steps outlining a plan for reunification efforts, the respondent told a department worker he “did not want to be involved with the department.”
It is clear from the record that during the period of time just prior to the children‘s removal in October, 2011, the respondent had an opportunity to observe their chaotic living environment. Andrea reported that the respondent spent time in the backyard of the home drinking with Leander, but he ignored his children, Kyara and Jahein. On September 14, 2011, a Community
On February 1, 2012, the date the children were adjudicated neglected, the respondent was provided with specific steps, which he signed. The steps indicated to the respondent that services would be determined once he was released from incarceration. At the bottom of the specific steps form, the respondent acknowledged that if he did not follow the steps, the chance that his parental rights would be terminated would increase. He also acknowledged that he understood that he should contact his lawyer and/or the department worker if he needed help in reaching any of his steps. The department could not be faulted for failing to provide any services for the respondent prior to his release from prison. His incarceration began before the children were taken from Andrea‘s custody and endured until August, 2012. The record also reflects that he did not or was unable to engage in any programs offered to inmates in the correctional facility. He was provided
At least twice, a department worker talked to the respondent about his children‘s cases, in November, 2011, and April, 2012, and suggested services in which he could participate when released. In both these conversations, the respondent stated that “he would not be willing to do anything once he was released.” He also stated that the department is “full of it,” that he did not want to attend any treatment programs once he is released from prison, and that he was not going to “jump through any hoops.” During this incarceration, at his request, the department provided the respondent with visits with the children by bringing the children on a monthly basis to the correctional facility where the respondent was housed. During these visits, the record reflects he did not engage with his children. He would wait for them to acknowledge him and he was demeaning to them. The respondent did not exercise his right to visit his children after his release.
On July 16, 2012, while objecting to the department‘s permanency plans of termination of parental rights for both his children, the respondent filed a motion to transfer guardianship of them to Kimberly B., the girlfriend he had assaulted in 2011. There is no indication anywhere in the record that the respondent advised the court at that time, or upon his imminent release, that he was willing to accept referrals for services.
At the beginning of the trial, the record reflects that the respondent reminded the court that consideration of his motion to transfer guardianship to Kimberly B. was to be part of the consolidated proceedings. The only evidence of a program he had attended to address issues of substance abuse and parenting identified in his
Even after withdrawing his motion to transfer guardianship to Kimberly B. near the end of the trial, the respondent, despite his claimed rehabilitation and the evidence presented during the trial that Andrea had not fully addressed her parenting issues, advocated that the children should be returned to Andrea‘s care. At no time during the trial did the respondent indicate he was ready to begin reunification efforts and comply with his specific steps as part of his effort to avoid termination.12
In the beginning of its memorandum of decision, the court found that the department has made reasonable efforts through the offer of appropriate and available services to promote a reunification with the children.
“Reviewing the court‘s findings and conclusions under the clearly erroneous standard . . . we cannot disturb its decision to terminate parental rights where
In the dispositional phase, in making the seven statutory findings required under
The judgments are affirmed.
In this opinion the other judges concurred.