In re Victor D.
The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the “officially released” date appearing in the opinion. In no event will any such motions be accepted before the “officially released” date.
All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative.
The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.
******************************************************
Roger N., self-represented, the appellant (respondent father).
Tammy Nguyen-O’Dowd, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, Gregory T. D’Auria, solicitor general, and Benjamin Zivyon, assistant attorney general, for the appellee (Commissioner of Children and Families).
Isidro Rueda, for the appellee (petitioner minor child).
Benjamin D. Hollander, guardian ad litem for the minor child.
BEACH, J. The respondent father1 appeals from the judgment of the trial court terminating his parental rights with respect to his minor child, Victor D. The respondent essentially claims2 that (1) the court erred when it found that the Department of Children and Families (department) had made reasonable efforts toward reunification and when it found that the respondent had failed to achieve a sufficient degree of personal rehabilitation, (2) the court violated the double jeopardy clause of the federal constitution, (3) the Commissioner of Children and Families (commissioner) prejudiced the respondent by withdrawing her support for reunification of the respondent with the child, and (4) the child’s guardian ad litem was biased and had a conflict of interest. We do not agree and affirm the judgment of the trial court.
The record reveals the following relevant facts and procedural history. The child was born in May, 2010. The mother identified the respondent as the biological father of the child. The mother had a history of abusing substances since 2005, and both she and the child tested positive for cocaine and marijuana at the time of the child’s birth. The commissioner immediately secured a ninety-six hour hold and filed a neglect petition and an ex parte order of temporary custody. The order was granted and specific steps were issued for the mother and the respondent on May 28, 2010. The respondent was not present at this proceeding.
In its memorandum of decision, the court found the following relevant facts. Although the respondent was aware that the mother was pregnant, he was not notified of the birth until June, 2010. When contacted by the department in September, 2010, the respondent stated that he wanted proof of his paternity. He did not participate in the September 21, 2010 neglect trial, at which the child was adjudicated neglected and committed to the commissioner. The respondent was determined by paternity testing to be the biological father on October 10, 2010; the child had been in the commissioner’s custody for five months at that point. The child had “highly specialized needs and severe developmental delays which required a caregiver who was committed to understanding and caring for those needs.” A number of social workers and service providers proceeded to work with the respondent to prepare him to address the child’s complex needs.
Difficulties arose almost immediately after paternity was established. At the time that paternity was established, the respondent lived several hours away in Massachusetts; the physical separation made visitation and the scheduling of appointments difficult. The primary social worker assigned to the case had “persistent concerns” about the respondent’s ability to care for the
Initially, all of the respondent’s visits with the child were supervised. During several supervised visits, the child was injured and cried hysterically, and, though no one actually observed the respondent hurt the child, the primary social worker testified that she suspected that the respondent caused these injuries.3 Additionally, the respondent was not receptive to the support that he was offered to improve his relationship with the child. When the department located a family therapist to help the respondent address his specific steps, the respondent, claiming that he did not need counseling, rejected the assistance. In the spring of 2011, the respondent became more consistent with visitation, but he continued to resist the recommendations of the child’s service providers. One provider, Birth to Three, focused on the child’s digestive issues. The respondent was given a list of foods that were safe for the child to eat. The respondent repeatedly challenged these recommendations and brought inappropriate food to sessions with the child.
On August 25, 2011, the commissioner filed a petition to terminate the respondent’s parental rights. The respondent made several complaints to the department ombudsman, who conducted a very limited review of the case. After what the trial court deemed a “profoundly flawed and incomplete assessment” by the ombudsman, the local department office was directed to withdraw the petition in April, 2012. The case was reassigned to a new social worker.
In July, 2012, despite negative reports from the child’s service providers and the respondent’s reported lack of progress, the department decided to allow the respondent unsupervised visitation with the child. When the visits were unsupervised, the child, who was at that point two years old, threw violent tantrums when his service providers arrived at his foster parents’ house to transport him to the respondent. After these unsupervised visits, the child demonstrated serious distress; he had nightmares, hit his foster parents, slammed his head on the floor, and regressed in his bathroom habits.
On October 23, 2012, the respondent filed a motion to revoke commitment. The commissioner filed a motion to revoke commitment and modify disposition to protective supervision on December 31, 2012. The hearing on these motions began on April 29, 2013, and
On April 21, 2014, the commissioner informed the court that she had changed her position, and she withdrew her own motion to revoke commitment. The court continued the trial until June 2, 2014. On June 2, 2014, the commissioner reported to the court that it supported the child’s petition to terminate the respondent’s parental rights. In its written November 7, 2014 decision, the court denied the respondent’s motion to revoke commitment. Thereafter, the court found by clear and convincing evidence, as to the adjudicatory phase, that the department had made reasonable efforts to reunify the respondent with the child and that the respondent had failed to rehabilitate. As to the disposition, pursuant to
I
We first address the respondent’s claims regarding the court’s conclusions terminating his parental rights. The respondent claims that the court erred by finding, for the purposes of
The principles that guide our review are as follows. “A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. . . . In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights [under
Our Supreme Court recently clarified the appropriate standard by which to review trial court judgments terminating parental rights. See In re Shane M., 318 Conn. 569, 587–88, ___ A.3d ___ (2015). “We have historically
“A [subordinate factual] 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. . . . [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. . . . [An appellate court does] 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.” (Internal quotation marks omitted.) In re Keyashia C., 120 Conn. App. 452, 455, 991 A.2d 1113, cert. denied, 297 Conn. 909, 995 A.2d 637 (2010).
A
Reasonable Efforts
The respondent claims that the court erred by determining that the department had made reasonable efforts toward reunification. The respondent’s argument on this point is brief; the respondent essentially claims that the department’s efforts to reunify were per se unreasonable because the reunification did not occur. He argues that “[t]he [department] went through a long and exhaustive process of court and blatantly didn’t take the obvious next steps to reunify. Instead they dragged the child through long legal battles when the biological father had been meeting all expectations and progressing to a level where they should have moved forward in their placement.” We do not agree.
To terminate a parent’s parental rights, “the department is required to prove by clear and convincing evidence that it has made reasonable efforts to reunify the children with the parent unless the court finds that the
We conclude that there was sufficient evidence in the record to support the court’s conclusion that the department’s efforts to reunify were reasonable. The court, in its lengthy November 7, 2014 written decision, recounted the efforts made by the department. The court found that these efforts began when the respondent’s paternity was established. The primary department social worker assigned to the child’s case “made extraordinary efforts to facilitate visitation, coordinate providers, and implore [the respondent] to take advantage of Birth to Three Services and medical visits so that he could better understand [the child‘s] needs.” The respondent had an inflexible schedule, and the department accommodated his scheduling requests. The department sought to facilitate a constructive relationship between the respondent and the child’s foster parents, who offered to help the respondent to understand the child’s needs and the special care that he required. The department accommodated the respondent when it reimbursed him for mileage on the occasions that he visited the child, located a single provider who could work with the respondent on several of the specific steps in one session, made referrals to providers, and coordinated the respondent’s visits to Connecticut with the child’s appointments with various service providers to enable the respondent to attend.
The court found that the department had made reasonable efforts—indeed, that it went “above and beyond what would be considered reasonable efforts“—after evidence showed that the department made significant efforts to include the respondent in and to provide the respondent with myriad appropriate services5 and that department social workers diligently tried to accommodate the respondent’s scheduling conflicts and financial needs. On occasions when the respondent canceled or missed visits with the child or his service providers—and such occasions were frequent—the department urged providers to rearrange their schedules to fit the respondent’s availability. The department also sent monthly e-mails to the respondent to ensure that his schedule was accommodated appropriately; the respondent often did not reply to these e-mails, but the department persistently followed up
The court found that after this change of assignment, the department continued to accommodate the respondent by “approv[ing] [the respondent’s] request for an overnight stay in a hotel every week starting in July, 2012, so that [the respondent] could have visits twice a week. By October, 2012, [the department] increased the length of visits and included an unsupervised component. [The department] [e]nsured that all services were paid for, including individual therapy . . . .”
The record indicates, and the court found, that the department ensured that the respondent and the child received services intended to effectuate reunification. In light of these findings, the respondent’s argument that, because reunification ultimately did not occur, the department’s efforts toward that end were unreasonable is without merit.
We conclude, therefore, that there is sufficient evidence in the record to support the court’s determination, which was made by clear and convincing evidence, that the department made reasonable efforts to reunify the respondent with the child.
B
Personal Rehabilitation
The respondent next claims that the court erred by concluding that he had not rehabilitated within the meaning of
Our statute provides for the termination of parental rights when a child “has been found by the [trial 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 . . . .”
The completion of the specific steps, however, does not guarantee reunification. See In re Vincent D., 65 Conn. App. 658, 670, 783 A.2d 534 (2001). “Although a parent may have participated in the programs recommended pursuant to the specific steps ordered, a court may properly find that the parent has failed to achieve rehabilitation.” In re Destiny R., 134 Conn. App. 625, 627, 39 A.3d 727, cert. denied, 304 Conn. 932, 43 A.3d 660 (2012). “The ultimate issue the court must evaluate is whether the parent has gained the insight and ability to care for his or her child given the age and needs of the child within a reasonable time.” Id.; see In re Eden F., 250 Conn. 674, 706, 741 A.2d 873, reargument denied, 251 Conn. 924, 742 A.2d 364 (1999).
The court found by clear and convincing evidence, in accordance with
The court also doubted the respondent’s ability to care adequately for his son. Despite years of working with the child’s service providers, “the manifestations of [the respondent‘s] inability and/or refusal to meet [the child‘s] need to grow and thrive with respect to his emotional, psychological, and/or physical need for safety and security and with respect to his emerging and ever evolving need for independence are many . . . .” The court could not “reconcile how [the respondent] could safely or appropriately care for [the child] when, even in January 2013, the simplest of instructions, such as being sure to hold [the child‘s] hand or be close when he attempts to walk down the stairs, was ignored or required repeated assertions and reminders over several weeks’ time.” On another occasion, in April, 2013, a service provider testified that she observed the
Given what the court termed the respondent’s “long-standing persistent issues with controlling behaviors,” it was troubled by a series of injuries that the child sustained while spending time with the respondent. Beginning in 2012, a series of marks and bruises appeared on the child. The court noted that, although some of these injuries may have been the result of normal toddler activity, one service provider testified that the respondent’s explanations for how these injuries occurred were confusing and illogical. The child’s foster parents increasingly were concerned with marks and bruises located in unusual places; for example, the foster parents reported that the child had bruises on his forearm that resembled a handprint. The child reported to his foster parents that “Daddy Roger” was “mean” to him and hit him.
Finally, the court cited the child’s need for permanency and security as an overriding concern in its assessment of the respondent’s rehabilitation. See In re Zion R., 116 Conn. App. 723, 739, 977 A.2d 247 (2009) (holding that it was proper to consider child’s young age and need for permanency in finding that respondent had not achieved rehabilitation). The court was “convinced that [the respondent] cannot and will not handle [the child‘s extreme physical reactions and behaviors] appropriately and that [the child] will be at extreme risk if ever in [the respondent‘s] exclusive care.”
The court then listed specific reasons why it did not find that the respondent had sufficiently rehabilitated, including the respondent’s: “(1) . . . inability to tune into and/or understand [the child‘s] needs, both specialized needs and the ordinary developmental needs of the child, (2) . . . resistance to and aggression in receiving support and training services from various providers to help him understand and address the child’s ever evolving needs, and (3) . . . refusal to accept that individuals who are highly trained and/or experienced child care professionals . . . have far greater, superior and invaluable information, insights and understanding of [the child‘s] needs which [the respondent] also required in order for the child to successfully transition into his care.”
The respondent essentially disputes the court’s determination of credibility; however, it was within the province of the trial court to credit or to discredit testimony as it deemed fit. The respondent claims that the court did not properly credit the testimony of Ralph Balducci, a court-appointed psychologist, Bruce Freedman, the respondent’s psychotherapist, and Collette Smith, a parent coach. He also claims that the court ignored por-
Although we acknowledge the respondent’s efforts to satisfy the specific steps, the court’s conclusion that the respondent did not achieve rehabilitation sufficient to warrant reunification is amply supported by factual findings in the record and meticulously explained in the court’s memorandum of decision. Thus, the court’s determination that the respondent did not rehabilitate sufficiently for the purposes of
II
We next address the respondent’s claim that the court violated the double jeopardy clause of the federal constitution by permitting the same witnesses who had testified at a 2012 hearing on a motion to revoke commitment to testify again at the trial resulting in termination. This claim is without merit. “It is well settled that prosecutions or convictions for double jeopardy purposes arise only from proceedings that are essentially criminal.” (Internal quotation marks omitted.) State v. Burnell, 290 Conn. 634, 645, 966 A.2d 168 (2009). Our Supreme Court has made it clear that the double jeopardy clause does not apply to termination of parental rights cases. Cookson v. Cookson, 201 Conn. 229, 237, 514 A.2d 323 (1986) (stating that “parents do not have a ‘double jeopardy’ defense against repeated state termination efforts“). Thus, this claim is without merit.
III
The respondent also claims that he suffered “extreme prejudice” as a result of the commissioner’s change in
Moreover, the trial court’s decision in this case was not premised on any finding by the Massachusetts Department of Children and Families; the court referred to the finding as “cumulative evidence.” Furthermore, the commissioner was free to change her position for whatever reason. For these reasons, this claim is without merit.
IV
Finally, the respondent claims that the child’s guardian ad litem had a conflict of interest and was biased against the respondent. The respondent did not raise this issue before the trial court; therefore, we decline to review it. See Practice Book § 60-5 (“[t]he court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequently to the trial“); see also In re Anna Lee M., 104 Conn. App. 121, 124 n.2, 931 A.2d 949, cert. denied, 294 Conn. 939, 937 A.2d 696 (2007).
Accordingly, the trial court did not err in terminating the respondent’s parental rights.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with the spirit and intent of
** November 20, 2015, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.