IN RE NATALIE S.*
(AC 38655)
Appellate Court of Connecticut
Argued April 4—officially released May 5, 2016**
DiPentima, C. J., and Sheldon and Bear, Js.
(Appeal from Superior Court, judicial district of Waterbury, Juvenile Matters, Turner, J.)
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The ‘‘officially released’’ date that appears near the beginning of each opinion is the date the opinion will be published in the
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Michael S. Taylor, with whom was Marina L. Green, for the appellant (respondent mother).
Benjamin Zivyon, assistant attorney general, with whom were Rachael M. Lavine, assistant attorney general, and, on the brief, George Jepsen, attorney general, Gregory T. D’Auria, solicitor general, for the appellee (petitioner).
Joseph A. Geremia, Jr., for the minor child.
Opinion
BEAR, J. The respondent mother, Heather S.,1 has appealed from the trial court’s judgment that Natalie S., the minor child of the respondent and Matthew B. (father), was neglected, and granting custody and guardianship of her to the father.2 The respondent sets forth two claims in her appeal. The first is that Connecticut law requires that the Department of Children and Families (department) continue efforts to reunify Natalie with her, and that the court erred in failing to order final specific steps or that the department make such
In the neglect petition, the petitioner alleged, pursuant to
‘‘On April 16, 2015, the [petitioner] moved the court for an order of temporary custody of [Natalie] born [in December 2013]. [The petitioner] contemporaneously filed a neglect petition alleging that Natalie was being denied proper care and attention and was living under conditions or circumstances injurious to her well-being. [The respondent] was duly served at her usual place of abode by a state marshal on April 17, 2015, with the motion for an [order of temporary custody], the neglect petition, summons, notice, and an order to appear for hearing. Respondent father was identified as John Doe whose whereabouts were unknown.
‘‘[The respondent] appeared on April 17, 2015, for the preliminary [order of temporary custody] hearing. She was appointed counsel and advised. Thereafter, she waived the ten day hearing, agreed to have the [order of temporary custody] sustained and entered a pro forma plea [denying the allegations of neglect]. The case was continued to May 27, 2015, for proof of service and plea by John Doe.
‘‘On May 27, 2015, John Doe appeared. He identified himself as Matthew B. [father]. [He] was appointed counsel, advised, and a pro forma plea was entered. Based on the results of paternity tests ordered by the court, Matthew B. was adjudicated the biological father of Natalie on July 14, 2015, and a judgment of paternity entered. On August 17, 2015, he moved the court to vacate the [order of temporary custody] and transfer guardianship and custody of Natalie to him. The motion was continued and consolidated with the neglect trial.
‘‘The trial commenced on October 9, 2015. It continued on October 22 and thence to October 23, 2015, whereupon it concluded. [The respondent], the father, and their respective counsel were in attendance throughout the proceedings. [The petitioner] introduced numerous exhibits and testimony of two witnesses . . . investigative social worker Luti Vinca and . . . ongoing treatment social worker Rodney Moore. [The respondent] testified, introduced two exhibits into evidence, and called two witnesses . . . a ‘stay at home
‘‘The court has heard and carefully considered the testimony of all the witnesses; reviewed and carefully considered all of the exhibits; and has judicially noticed and thoroughly reviewed the verified petition. The credible and relevant evidence offered at trial, and a review of the judicially noticed court records, support the finding of the facts set forth below by a preponderance of the evidence presented.’’
The court proceeded to make the following factual findings: ‘‘Notice of this proceeding was provided in accordance with the Practice Book. Neither parent claims Native American tribal affiliation. The court is unaware of any proceeding pending in any other court regarding custody of the minor child. This court has jurisdiction.
‘‘Due to reports of physical neglect, emotional neglect, substance abuse, mental health issues and criminal issues, [the department] has been involved with [the respondent] and Natalie since February 26, 2015. Three reports were received by [the department] expressing concern about [the respondent’s] alleged substance abuse. On February 26, 2015, it was reported that Natalie was bitten by a dog, had two puncture wounds, was not dressed appropriately for the weather, [the respondent] kept alcohol in her purse, in her car, alcohol was smelled on her breath, and that [the respondent] had been seen driving with Natalie in her car. The allegations could not be substantiated.
‘‘On March 7, 2015, [the respondent] was found unresponsive in her vehicle by her roommate in a Dunkin Donuts lot. [The respondent] admitted she’d taken more Ambien than prescribed. On April 16, 2015, [the respon-dent] was arrested at 2:51 a.m. with Natalie in the car. She was charged with driving under the influence of alcohol and with risk of injury to a minor.
‘‘[The respondent’s] criminal history includes arrests for possession of a controlled substance on September 4, 2009, felony possession of a controlled substance on May 20, 2010, disorderly conduct on August 30, 2014, and possession of a controlled substance in August, 2014. She has been diagnosed with mental health issues, alcohol abuse, and has been prescribed multiple different medications.
‘‘She has struggled with alcohol abuse for many years. By her own admission she has had ‘substance issues since May 2008’ and ‘a significant substance abuse issue since 2012.’ [The respondent] relocated with Natalie from North Carolina to Connecticut in the fall of 2014. She, admittedly, came to [Connecticut] in 2014 because she had alcohol and other substance problems and needed help. While in North Carolina she [had] received mental health treatment for anxiety, depression and [attention deficit hyperactivity disorder]. She and Natalie moved in with [the respondent’s] father whom she described as bipolar and a drug addict.
‘‘[The respondent] and the father met and began dating in Greensboro, [North Carolina] between 2011 and 2012. She refused having him listed on Natalie’s birth certificate. She alleged he was very violent with her and kicked her down the stairs while she was pregnant with Natalie. She did not file a report or seek medical treatment concerning any purported abuse. Subsequently, she denied knowing the identity of Natalie’s father. She reported she’d had sexual relations with multiple men while under the influence of
‘‘[The department] made reasonable efforts prior to April 16, 2015, to prevent the removal of Natalie from her home. Natalie was placed and remains in a nonrelative foster home. She is well cared for, doing well and is medically up to date. No concerns have been noted. [The department] made reasonable efforts to reunify Natalie with both [the respondent] and the father. Natalie is completely dependent upon a consistent, stable, sober caregiver to meet her daily and emergency needs. [The department] has established that [the respondent] has failed in that regard.
‘‘Specific steps to effectuate reunification of Natalie with [the respondent] were issued on April 23, 2015. [The department] made reasonable efforts to effectuate the reunification of Natalie with [the respondent]. [The department] offered [the respondent] casework services, visitation services, assessment services, substance abuse evaluations, screens, breathalyzers, and mental health assessment.
‘‘[The respondent] was admitted into an intensive inpatient treatment program at Rushford on May 5, 2015, for alcohol dependence. She completed the program on May 26, 2015. Her addiction counselor recommended she continue treatment in a relapse prevention or recovery program to keep fighting the disease. She failed to follow-up and relapsed during the weekend of July 25, 2015. She was then admitted on July 29, 2015, into a detox program followed by a twenty-eight day inpatient program. She completed the program and was admitted into an intensive inpatient treatment program. She completed the program at the McDonough House and was discharged on [August 29, 2015].
‘‘Upon being discharged she was recommended for an intensive outpatient group . . . . Due to transportation issues presented by [the respondent], [she was afforded] the opportunity to attend a lower level relapse prevention group instead. She was to start the relapse prevention group . . . [in] September 2015. She failed to show up for the [relapse prevention group] on September 8, 2015. She failed to show up again on September 23, 2015. On September 24, 2015, she was a no show for her individual appointment with her counselor. On October 14, 2015, she again failed to show up for the [relapse prevention group].
‘‘[The respondent] did not have stable housing prior to Natalie’s birth. Nor has she had stable housing since Natalie’s birth. She lived with a series of friends and boyfriends while in [North Carolina]. Upon moving to [Connecticut] she and Natalie lived with her father for a few months, until he put her out. While living with her father she exercised poor judgment by leaving Natalie at various times in the sole and unsupervised care of her father whom she alleges sexually assaulted her as a child.
‘‘After vacating her father’s house in March 2015, she and Natalie moved in with a woman (Jessica) whom she’d met at [Alcoholics Anonymous] meetings. Thereafter, she moved in with Teague, a recovering alcoholic whom she’d also met at [Alcoholics Anonymous] meetings. Teague became her boyfriend. She lived with him temporarily until she entered the [intensive outpatient] program at Rushford followed by the [intensive inpatient] program at the McDonough House. Upon being discharged from the McDonough House she found residence at the House of
‘‘[The respondent] conceded during the trial that on April 16, 2015, Natalie was neglected in that she was subjected to conditions injurious to her well-being. [The respondent] admitted during the trial that she is an alcoholic and relapsed with alcohol and Ambien. [The respondent] further conceded during the trial that substance abuse has impacted her ability to care for Natalie.
‘‘Notwithstanding the sporadic and inconsistent progress [the respondent] has made, she has not yet progressed enough with her substance abuse, mental health and housing stability to have Natalie returned to her care at this time. She has not yet achieved the degree of rehabilitation necessary. Her substance abuse and mental health continue to be major concerns after her relapse the weekend of July 25, 2015. She is currently in a dating relationship with a man whom she met at an [Alcoholics Anonymous] meeting and whom she relies upon as a source of support. She has failed to demonstrate that she is now or [could] in the reasonably foreseeable future be a consistent, stable, sober caregiver to Natalie, able to meet her daily and emergency needs.
‘‘The father was noncustodial at the time of Natalie’s removal by [the department]. [The respondent] purposefully concealed and kept her and Natalie’s whereabouts from being made known to him. At a considered removal meeting with [the department] [on] or about April 28, 2015, [the respondent] identified the father for the first time as the putative father of Natalie. After being noticed, the father appeared in [Connecticut] on or prior to May 27, 2015. Prior to May 2015, he had not seen Natalie since she was a few months old. His absence in her life is due solely to [the respondent’s] efforts to keep Natalie’s whereabouts unknown to him. She knew he was Natalie’s father. He was prevented from coming forward earlier and providing support for Natalie and presenting himself as a resource for her. He approached [the department] contending he was Natalie’s biological father. He provided [the department] with a copy of the results of a paternity test done on July 1, 2013 in [North Carolina]. He has been fully cooperative with [the department] in every respect since then. No specific steps were issued for the father. [The department] did not recommend any services for him. [The department] could not identify any areas for services which he [needs]. He has been very responsive and fully cooperative with all requests made of him by [the department].
‘‘The father recognizes the need and desires to keep [the respondent] involved in Natalie’s life. He [is] willing to allow her to enjoy liberal and flexible visitation and other contact with Natalie. He has never been married and is not in a dating relationship. He continues to reside in Greensboro, [North Carolina] with his mother and father in their home. [S]ocial worker Rodney Moore flew to Greensboro, [North Carolina] on October 15, 2015, to interview [the father’s] parents and inspect their home. His parents are his support system. They are committed to helping him care for Natalie. A records check by [the department] into the background of
‘‘The father served in the U.S. Army as a parachute rigger in the 82nd Airborne Division and was honorably discharged. A background check by [the department] disclosed no criminal or domestic violence history for the father. Substance abuse test results for the father were all negative. [The respondent’s] unsubstantiated allegation that he abused illegal and prescription drugs is given no weight by this court. He previously worked as a commercial scuba diver and with the Boy Scouts of America. He currently works with youth groups within his church. He is employed full-time as a horse farm manager. He earns about $20,000 a year. He has Blue Cross/Blue Shield health insurance. It is available for Natalie should she be in his care. Since May 2015, he has travelled regularly on weekends from [North Carolina] to [Connecticut] to visit Natalie. He has driven to [Connecticut] at his expense. He has travelled to [Connecticut] two times by airplane. He [has] also visited with her each time he has had to appear in [Connecticut] for court.’’
Accordingly, the court adjudicated Natalie neglected, vacated the order of temporary custody, and granted custody and guardianship to the father. This appeal followed.
I
The parties agree that as to the first issue, namely, whether the department had a continuing duty to provide reunification services to the respondent, the question is one of statutory construction and the standard of review is therefore plenary. See Marchesi v. Board of Selectmen, 309 Conn. 608, 614, 72 A.3d 394 (2013).
The respondent argues that the department has a continuing statutory obligation to make reasonable efforts to reunify the child with her, even after the adjudication of neglect and the awarding of custody and guardianship to the father, who was a biological parent like the mother.5 In support of her claim, she relies on
The respondent further argues that her right to continuing services from the department not only is predicated on the specific steps language in
If, after a neglect adjudication, a child is committed to the care, custody, and guardianship of the commissioner pursuant to
‘‘Accordingly, we conclude that the court’s failure to find that reunification with the respondent was not viable due to neglect under state law was erroneous as a matter of law because it was internally inconsistent with the court’s dispositional order on the neglect petition, which transferred the custody and guardianship of the petitioner to [the cousin].’’ (Footnotes altered; internal quotation marks omitted.) In re Pedro J. C., supra, 154 Conn. App. 538–39.
The principles set forth in In re Pedro J. C. are applicable both in the context of a transfer of custody and guardianship from one parent to the other, and in the context of a transfer of custody and guardianship from the petitioner to a biological parent as a dispositional result of a neglect proceeding. The court’s disposition in the present case awarding custody and guardianship to the father deprived it of continuing jurisdiction over the respondent’s possible future reunification with Natalie and thus required the cessation of such reunification efforts.
II
The respondent’s second claim is that the court erred in failing to require further investigation of the father’s fitness to parent before granting custody and guardianship to him and permitting him to remove Natalie to North Carolina, and that such further investigation was required by the department’s duty to make reasonable efforts toward reunification of the respondent with Natalie.14 The respondent argues
We review the court’s findings of fact under the clear error standard. ‘‘A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . Because it is the trial court’s function to weigh the evidence and determine credibility, we give great deference to its findings. . . . In reviewing factual findings, [w]e do not examine the record to determine whether the [court] could have reached a conclusion other than the one reached. . . . Instead, we make every reasonable presumption . . . in favor of the trial court’s ruling.’’ (Internal quotation marks omitted.) Bender v. Bender, 292 Conn. 696, 728–29, 975 A.2d 636 (2009). We give plenary review to the respondent’s claims of statutory construction and application in support of her second claim. See Marchesi v. Board of Selectmen, supra, 309 Conn. 614.
The respondent argues that the petitioner’s alleged ‘‘failure to conduct an adequate investigation implicates the trial court’s conclusions concerning [the department’s] obligation to make reasonable efforts before removing a child from the home.’’ The respondent also asserts that ‘‘[t]here is no dispute that, before removing a child from her custodial parent, [the department] must make reasonable efforts to avoid the removal,’’15 and ‘‘[t]his obligation applies in the context of a neglect petition as well as a petition for termination, and includes the obligation, in the context of this case in particular, to perform a thorough investigation before removing a child and placing her out of state.’’ It is not disputed, however, that the department provided substantial services to the respondent and Natalie for several months after the filing of the neglect petition in April, 2015, through late October, 2015. To the extent, however, that the ‘‘reasonable efforts’’ that the respondent asserts are required include the department’s performance of such a ‘‘thorough investigation,’’ she has not cited any relevant authority for this proposition.16 She does cite in support of her claim
The respondent also argues that there was substantial factual evidence calling the father’s fitness into question. She, however, in her brief ‘‘does not contend that this evidence required that the trial court find the father unfit, or find even that the alleged events had occurred. The significance of this evidence was only in that it should have triggered in the petitioner an obligation (and from the trial court, an order) to do a thorough investigation into the father’s fitness before allowing Natalie to be removed from [the respondent] and moved to North Carolina with him.’’ The respondent then set forth her unsubstantiated and unproven allegations about the father that were not found as fact by the court, and she made unsupported allegations about the department’s activities or lack thereof relating to its investigation of the father’s fitness to be a custodial parent and guardian of Natalie. The respondent does not assert that any specific fact found by the court is clearly erroneous. She did not offer any specific evidence in the neglect hearing to support her claims about the department’s failure to perform any required additional investigation of the father.
The respondent additionally argues that the court could have entered orders,
The court further found: ‘‘The father recognizes the need and desires to keep [the respondent] involved in Natalie’s life. He [is] willing to allow her to enjoy liberal and flexible visitation and other contact with Natalie. He has never been married and is not in a dating relationship. He continues to reside in Greensboro, [North Carolina] with his mother and father in their home. [S]ocial worker Rodney Moore flew to Greensboro, [North Carolina] on October 15, 2015, to interview [the father’s] parents and inspect their home. His parents are his support system. They are committed to helping him care for Natalie. A records check by [the department] into the background of the paternal grandparents revealed no concerns. Their home is a big single-family house situated on a large property. It is ‘child proofed,’ there is a bedroom fully furnished with a bed already set up for Natalie’s sole use, lots of toys, clothing, and pictures. It is a safe, nurturing, and appropriate residence for Natalie.’’
On the basis of these findings, which the respondent does not claim were clearly erroneous, we cannot conclude that the trial court erred in declining to enter orders placing conditions on Natalie’s placement with the father pursuant to its authority recognized in In re Emoni W, supra, 305 Conn. 736–37, 741. Moreover, the respondent has failed to establish on appeal that, after the court’s adjudication of neglect and dispositional award of custody and guardianship to the father, instead of commitment of the child to the care, custody and guardianship of the petitioner, the department has any statutory duty or authority to continue its activities with or for the respondent, the father or Natalie. See In re Pedro J. C., supra, 154 Conn. App. 538–39.
The judgment is affirmed.
In this opinion the other judges concurred.
BEAR, J.
* In accordance with the spirit and intent of
** May 5, 2016, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.
Notes
‘‘Connecticut courts likewise have recognized the constitutionally protected right of parents to raise and care for their children.’’ Id., 41. To the extent that the respondent argues that such constitutional rights are only for her benefit or otherwise ignores the father’s equal rights as a parent, she is incorrect.
‘‘(b) Notwithstanding the provisions of subsection (a) of this section, the commissioner is not required to file a petition to terminate parental rights in such cases if the commissioner determines that: (1) The child has been placed under the care of a relative of such child; (2) there is a compelling reason to believe that filing such petition is not in the best interests of the child; or (3) the parent has not been offered the services contained in the permanency plan to reunify the parent with the child or such services were not available, unless a court has determined that efforts to reunify the parent with the child are not required.’’
There is no similar requirement of proof of reasonable efforts prior to an adjudication of neglect and subsequent disposition either of commitment to the petitioner or of custody to a biological parent. See, e.g.,