Opinion
No. 19435.
12-02-2015
In re GABRIELLA A.
Dana M. Hrelic, with whom was Brendon P. Levesque, Hartford, for the appellant (respondent mother). John E. Tucker, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Benjamin Zivyon and Patricia E. Naktenis, assistant attorneys general, for the appellee (petitioner).
Dana M. Hrelic, with whom was Brendon P. Levesque, Hartford, for the appellant (respondent mother).
John E. Tucker, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Benjamin Zivyon and Patricia E. Naktenis, assistant attorneys general, for the appellee (petitioner).
Opinion
ESPINOSA, J.
In this certified appeal, the respondent mother, Tanesha E., claims that the Appellate Court improperly affirmed the judgment of the trial court terminating her parental rights and denying her motion to revoke commitment as to her minor child, Gabriella A. The respondent claims that the Appellate Court improperly concluded that the trial court properly determined pursuant to General Statutes § 17a–112 (j) that: (1) the petitioner, the Commissioner of Children and Families, had made reasonable efforts to reunify the respondent with Gabriella; and (2) the respondent was unable to benefit from reunification services. In re Gabriella A., 154 Conn.App. 177, 186, 191, 104 A.3d 805 (2014). Because we conclude that there was sufficient evidence to support the trial court's finding that the petitioner had proved by clear and convincing evidence that the respondent was unable to benefit from reunification services, we affirm the judgment of the Appellate Court.
We granted the petition of the respondent mother, Tanesha E., for certification for appeal, limited to the following questions: (1) “Did the Appellate Court properly affirm the trial court's judgment terminating the respondent's parental rights after finding that the Department of Children and Families had made reasonable efforts to reunify the respondent with her daughter?” and (2) “Did the Appellate Court properly affirm the trial court's determination that the respondent was unable to benefit from reunification efforts?” In re Gabriella A., 315 Conn. 914, 106 A.3d 306 (2015).
For the sake of consistency with the majority opinion, all references to the petitioner in this opinion include the Department of Children and Families. See footnote 3 of the majority opinion.
General Statutes § 17a–112 (j) 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–111b, 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–111b, 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 ... 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....”
Because the petitioner can prevail by showing either reasonable efforts at reunification or that the respondent is unable to benefit from reunification services; In re Jorden R., 293 Conn. 539, 552–53, 979 A.2d 469 (2009); the majority does not address the reasonableness of the petitioner's reunification efforts.
Because the petitioner acts on behalf of the Department of Children and Families (department), references to the petitioner include both the department and the commissioner.
Under our Appellate Court's jurisprudence, it is “well settled” that courts may only consider facts preceding the date of the termination petition when making a reasonable efforts determination. In re Joseph M., 158 Conn.App. 849, 862, 120 A.3d 1271 (2015); see In re Kylik A., 153 Conn.App. 584, 596, 102 A.3d 141, cert. denied, 315 Conn. 902, 104 A.3d 106 (2014); see also Practice Book § 35a–7 (a) (“[i]n 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”). Although neither party has raised this issue, I generally limit my analysis to the events preceding the date of the termination petition in accordance with this case law.
Because we conclude that there was sufficient evidence in the record to support the trial court's finding that the petitioner met its burden to show that the respondent was unable to benefit from reunification services we need not reach the issue of whether the trial court properly concluded that the petitioner proved that it made reasonable efforts to reunify the respondent with Gabriella. “[T]he [petitioner] must prove either that it has made reasonable efforts to reunify or, alternatively, that the parent is unwilling or unable to benefit from reunification efforts. Section 17a–112 (j) clearly provides that the [petitioner] is not required to prove both circumstances. Rather, either showing is sufficient to satisfy this statutory element.” (Emphasis omitted.) In re Jorden R., 293 Conn. 539, 552–53, 979 A.2d 469 (2009). As contemplated in In re Jorden R., the present case is one in which the petitioner chose to continue to provide reunification services even though it had determined that the respondent was unable or unwilling to benefit from such services. Id.
The purpose of the group at the advocacy center was to “help parents/caregivers support their child after an allegation of sexual abuse and to prevent further abuse.” The trial court faulted the respondent for her participation in the nonoffending caregiver group because she had appeared to focus on her own victimization as a child, rather than Gabriella's victimization, and appeared angry and vengeful. The manager who expressed these concerns, however, explained that parents are normally interviewed before joining the group, because “[n]ot all people are ready to come in.” The respondent never received an interview and the manager testified that this was “unusual.” The group also ended three months before she began attending weekly therapy and nearly one year before she began trauma therapy. Nonetheless, the trial court stated that her participation in the group at that time “seem[ed] to be more representative of where ... [she is] along the spectrum of rehabilitation.”
The record reveals the following procedural history and facts, some of which were undisputed, and others that were found by the trial court to be proved by clear and convincing evidence. The respondent, a citizen of Jamaica, has seven children, five of whom live in Jamaica with their father, Marshall A. The other two children, who currently reside in Connecticut, are Gabriella, who is the subject of this appeal, and Erica M., to whom the respondent has had her parental rights terminated during the course of the proceedings at issue in this appeal. See footnote 5 of this opinion. While visiting the United States to attend a memorial service for her brother, the respondent gave birth to Gabriella at a Connecticut hospital on February 28, 2011. The petitioner's involvement with the family began shortly thereafter, when the hospital reported to the petitioner that the respondent lacked provisions for the child. On or about April 9, 2011, the respondent returned to Jamaica and left six week old Gabriella, as well as her ten year old half sister, Erica, in the Connecticut home of Nicolette R. Although the record is unclear as to the precise nature of Nicolette's relationship to the respondent, Gabriella and Erica, they are not biological relatives.
More than four months later, on August 25, 2011, a social worker for the Department of Children and Families (department) who had been assigned to the case reported to the petitioner that she had observed a large number of children's birth certificates in Nicolette's home, and that the adults who lived there had been unable to explain the whereabouts of the children named on the certificates. On that same day, the social worker removed Gabriella, Erica and a third child, Samantha R., from the home, under circumstances that the trial court described as “relatively horrific.” Specifically, the social worker testified that while at the home she recovered a cell phone with video that depicted Erica digitally penetrating the infant Gabriella, and other footage showing Erica removing Gabriella from her high chair and “thrash[ing] her around” aggressively in the air. The video also depicted Erica and Samantha engaging in sexualized behaviors with each other. Erica has a history of sexual abuse in Jamaica by persons other than the respondent, both while Erica was in the respondent's care and also while Erica was placed in orphanages after being temporarily removed from the respondent's custody by Jamaican authorities. Although the facts relating specifically to Erica are not directly relevant to the termination of the respondent's rights with respect to Gabriella, Erica's sexual abuse provides context for the nature of services later provided to the respondent and are referenced only for that purpose.
On August 29, 2011, the court granted the petitioner's ex parte motion for an order of temporary custody filed on behalf of Erica and Gabriella, finding that the children were in immediate physical danger from their surroundings and continuation in the home was contrary to their welfare. On the same day, the petitioner filed a neglect petition. After she learned that the children had been removed from Nicolette's home by the petitioner, the respondent returned to the United States in September, 2011. The order of temporary custody was subsequently sustained by agreement on November 18, 2011, at which time the court adjudicated Gabriella neglected and committed her to the care and custody of the petitioner. Gabriella has been in her current, preadoptive foster placement since December, 2011.
On October 21, 2013, the respondent consented to the termination of her parental rights with respect to Erica, and she has not challenged that termination in this appeal.
The respondent described how her stepfather attempted to sexually assault her, which caused her to drop out of school. In 2007, the respondent's older brother, whom she was closest to and admired, was killed in Iraq.
At the time that Gabriella was adjudicated neglected, the court ordered specific steps for the respondent, including requiring that she take part in counseling and make progress toward the identified treatment goals of meeting Gabriella's need for safety and developing age appropriate parenting techniques. The respondent was also required to obtain adequate housing and a legal income. The petitioner was ordered to refer the respondent to appropriate services and to monitor the respondent's progress and compliance with the specific steps. The petitioner submitted a permanency plan with the goal of the reunification of Gabriella with the respondent, which was approved by the court on July 3, 2012.
After ascertaining that the respondent did not have substance abuse issues, in furtherance of the permanency plan, the petitioner referred her to various service providers, whose opinions as to the respondent's progress are discussed in detail later in this opinion. Radiance Innovative Services (Radiance) provided the respondent with individual therapy, a parenting education class entitled “Common Sense Parenting,” and case management services to assist her in dealing with her immigration, housing and employment issues. In addition, the Greater Hartford Children's Advocacy Center at Saint Francis Hospital and Medical Center provided a second parenting education class, entitled, “Child Sexual Abuse Education for Non–Offending Caregivers,” to assist the respondent in parenting a child who has been sexually abused. When the department's contract with Radiance expired in December, 2012, the respondent had attended only fourteen of twenty-four individual counseling sessions. Following the respondent's discharge from Radiance, the petitioner referred the respondent to a different service provider for individual therapy, Beverly Coker, a licensed clinical social worker with New Beginnings Family Center, LLC. The petitioner also facilitated supervised visitation for the respondent with Gabriella.
During the course of the petitioner's provision of reunification services to her, the respondent revealed that she herself had suffered serious trauma, both as a child, including sexual abuse and abandonment, and as an adult, including the temporary removal of her children from her custody by Jamaican authorities. Specifically, the respondent claimed that as a child she had been exposed to domestic violence between her mother and her stepfather, and that her stepfather had tried to sexually assault her. The respondent also reported that when she told her mother of the attempted sexual assault, her mother sent her away from their home because her mother did not believe her. In her adult life, the removal of her six children by the Child Development Agency of Jamaica was particularly traumatic, as she was also arrested and subsequently sentenced to two years of probation for abandonment of the children in connection with the incident that prompted their removal.
On February 6, 2013, the respondent filed a motion to revoke commitment, asserting that she had complied with the specific steps ordered by the court. Shortly thereafter, on March 14, 2013, the petitioner petitioned pursuant to § 17a–112 (j) for termination of parental rights on behalf of Gabriella, then two years old. The petitioner alleged that Gabriella had been found in a prior proceeding to be neglected, and that although the petitioner had made reasonable efforts to achieve reunification, the respondent was unable or unwilling to benefit from those efforts. As a result, the petitioner alleged that the respondent had failed to achieve the degree of personal rehabilitation that 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 life of the child. The petitioner subsequently sought and obtained approval of a new permanency plan with the goal of termination of parental rights and adoption. Prior to the trial on the termination petition, Derek A. Franklin, a licensed clinical psychologist, was appointed by the court to conduct interactive assessments of the respondent and Gabriella.
In addition to petitioning for the termination of the respondent's parental rights, the petitioner also petitioned for the termination of the parental rights of Marshall A., Gabriella's biological father. His parental rights were terminated on February 19, 2014, and he has not appealed from the judgment.
The respondent's therapy sessions were held at libraries and other community venues.
At the trial on the petitioner's petition to terminate parental rights and the respondent's motion to revoke commitment, much of the testimony centered on the nature of the services provided to the respondent, and her progress toward the goals identified in the specific steps, that is, meeting Gabriella's need for safety and developing age appropriate parenting techniques. In addition to the testimony of the various treatment providers, the petitioner presented the testimony of Franklin, who opined that the respondent had certain personality traits, some of which raised grave concerns regarding her ability to parent Gabriella, and another trait that prevented her from being able to benefit from reunification services. Specifically, Franklin testified that the respondent has great difficulty modulating her anger, and also has attachment issues that place her at great risk of treating Gabriella with what Franklin termed “benign neglect.” In order to address both of these personality attributes—an undertaking that Franklin testified was necessary before the respondent would be able to safely parent Gabriella—the respondent would need to deal with her significant trauma history. He also testified, however, that one of the respondent's other personality issues prevented her from being able to make sufficient gains in therapy in time to benefit from reunification efforts. The obstacle to the respondent's recovery, Franklin explained, is that the respondent does not believe that she has any mental health issues that need treatment and sees little reason to change. Instead, the respondent believes that others are to blame for all of her misfortunes.
Following a five day trial, the trial court announced its decision orally and granted the petition for termination of parental rights as to the respondent. The court found that the petitioner had made reasonable efforts toward reunification, that the respondent was unable to benefit from reunification services, and that the respondent had failed to rehabilitate to a degree that, given the age and needs of Gabriella, the respondent could assume a responsible position in Gabriella's life. See General Statutes § 17a–112 (j)(1) and (3)(B).
The court's decision considered in detail the progress that the respondent had made with the various treatment providers, and explained why that progress was insufficient. The court began with the observation that, consistent with the respondent's expressed preferences, the petitioner had taken care to find providers who all were of West Indian descent, and therefore shared the respondent's cultural background. Such a benefit, the court noted, is a “step up ... in terms of [finding] the appropriate treatment.” The court observed that the respondent's first therapist, Tamar Draughn, a licensed professional counselor with Radiance, reported that although the respondent had made some progress during treatment, she had been unable to connect her traumatic childhood experiences with her current behavior. The court several times suggested that the respondent's failure to make significant progress during her individual therapy with Draughn was likely due to her irregular attendance at counseling sessions. Additionally, the respondent had been unable to resolve her immigration status, and, therefore, had failed to achieve the goal of providing a safe environment for Gabriella.
The court also cited to the testimony of Regina Dyton, the program manager and one of the facilitators of the nonoffending caregivers group, as providing further support for its conclusion that reunification was not a viable option. Although the respondent received a certificate of attendance for the course, Dyton testified that the respondent's participation in the group had been inappropriately focused on her own pain and trauma, rather than on the purpose of the course: to learn how to recognize and deal with the trauma of a child subjected to sexual abuse. The court found that the respondent's inappropriate behavior during the group demonstrated that the respondent's progress in her individual therapy was “just the tip of the iceberg.” The “tremendous amount of trauma in [the respondent's] background,” the court stated, is something that “takes an enormous amount of effort and an enormous amount of time” to work out.
The court next considered the trauma therapy provided by Coker. The court found that Coker's therapy had helped the respondent to open up about her trauma. Because Coker admitted that the respondent still had much work to do, however, the court did not credit her final recommendation of reunification. The court made clear that its failure to credit Coker was limited only to her final recommendation, stating that it accepted Coker's testimony generally, found her to be a good therapist and suggested that the respondent may benefit from continuing therapy with her.
Finally, the court addressed Franklin's testimony. The court's remarks generally recognized that Franklin's testimony supported the finding that although the respondent was capable of making some progress exploring the effects of the abuse that she had suffered at the hands of others on her emotional well-being, her refusal to accept that her resulting mental health issues were impacting her ability to parent her children, coupled with her refusal to accept responsibility for her own actions prevented her from being able to benefit from reunification services.
Franklin had met twice with the respondent and, on the basis of those meetings, the respondent's performance on tests administered by Franklin, documents provided by the petitioner, and a discussion with Coker, he diagnosed the respondent as suffering from post-traumatic stress disorder. In the course of his testimony, Franklin opined that Coker may not have provided the respondent with the appropriate type of therapy, which Franklin testified should have been trauma focused, cognitive behavioral therapy. Franklin testified that he believed that Coker had provided the respondent with insight oriented therapy, which he testified would not be an effective type of therapy to assist the respondent in dealing with her trauma. The court credited Franklin's testimony that the respondent's tendency is to blame others rather than herself, that her interactions with adults and children are tainted by mistrust and anger, and that she is not emotionally capable of providing the nurture and care that a young child needs. The court stated that, on the basis of Franklin's opinion, it could not afford to give the respondent “even one minute more” to achieve reunification with Gabriella.
In response to two motions filed by the respondent, the court offered subsequent clarifications of its February 19, 2014 judgment. In a hearing on the first motion, to stay the judgment pending appeal, the respondent argued, inter alia, that the petitioner's theory as to the respondent's failure to rehabilitate was predicated on the provision of the wrong type of therapy to the respondent. The petitioner's own theory of the case, the respondent argued, proved that the petitioner had not made reasonable efforts toward reunification and prevented the petitioner from claiming that the respondent was unable to benefit from appropriate reunification services.
In denying the motion to stay, the court stopped short of expressly rejecting the respondent's claim that the petitioner had attributed her failure to rehabilitate to the provision of the wrong type of therapy. The court made clear, however, that it had not relied on any such theory in arriving at its conclusion. Instead, the court emphasized that it had concluded that, although it was not the respondent's fault, her extensive trauma history and its detrimental effects on her mental health had prevented her from being able to make sufficient gains from the provided services. The court pointed to Franklin's testimony as support for the conclusion that, because the respondent had suffered so much trauma, even with long-term therapy, it would be difficult for her to gain the necessary insight as to how to parent a child, because “human beings rarely completely divest themselves of [that kind of trauma], no matter how much therapy they can get.” On the basis of Franklin's testimony that the respondent would continue to have great difficulty placing a child's interests first and forming an attachment to a child, the court stated, it was clear that placing Gabriella back in the respondent's care “would be a disaster....”
The court also underscored that it arrived at its conclusion in light of the age of the child. Gabriella, then three years old, needed to be able to form the crucial attachment to her caregiver immediately. The child already had bonded with her foster parents, a factor that the court considered in determining that the respondent could not, within a reasonable time, assume a responsible position in the life of the child.
Subsequently, the court issued an articulation of its decision, in response to the respondent's request that the court articulate the factual basis for its finding that Draughn, a counselor at Radiance, was unable to continue working with the respondent “ ‘for whatever reason,’ ” rather than due to the petitioner's affirmative decision to discontinue those services. The court stated that, although it was true that the contract had ended, the petitioner's decision to switch providers was driven both by the respondent's inconsistent attendance at counseling sessions and the recognition that the respondent would benefit from more intensive treatment, in a more private and restrictive setting than was available through Radiance. The court considered it significant that Draughn had reported that the respondent had “ ‘not made adequate progress in reaching her goals' ” through the individual counseling services provided. The court also rejected the respondent's claim that Draughn had opposed the change in services, noting that Draughn herself had recommended that the respondent receive therapy that was “trauma focused” and in a more restrictive setting. Draughn's testimony, the trial court observed, was consistent with that of Heather Czerwinski, a department social worker, who had testified that at the meeting with the director of the Radiance program, “ ‘it was determined that [the respondent] would better ... benefit from a referral for individual counseling to a more intensive provider.’ ”
The trial court initially had denied the motion for articulation. The Appellate Court subsequently granted the respondent's motion for review of the order denying articulation, and ordered the trial court to issue the articulation.
The court subsequently issued a second articulation that merely clarified that it had not been misled when counsel mistakenly referred to the wrong date for the filing of the petition for termination of parental rights. The court indicated that it understood that the filing date for the petition was March 14, 2013, and stated that references to an incorrect filing date had not affected the court's finding that the petitioner made reasonable efforts.
It is therefore no surprise that Draughn noted the respondent's “[struggle] to gain insight” and difficulty reflecting on childhood experiences in her discharge summary.
Finally, the court clarified that it had used the phrase “for whatever reason” in order to emphasize that, regardless of the reasons for which the petitioner discontinued the services provided by Radiance, the court had found that the respondent simply was unable to benefit from the services provided. The court explained that it arrived at this conclusion because it “heavily credited” Franklin's testimony and his evaluation of the respondent. The court credited Franklin's conclusions regarding the respondent's ability to benefit from therapy. Specifically, it noted that Franklin had testified that the respondent was “capable of engaging in services,” but that her inability to understand that she has problems that need to be addressed in therapy rendered it unlikely that she would benefit from treatment. The court pointed to Franklin's explanation that the bar to the respondent benefiting from therapy is her belief that she does not need to change. In discussing that explanation, the court observed that Franklin testified that “even if the respondent were to receive the appropriate trauma based therapy, ‘the likelihood of her starting this and successfully completing it would only add more time to the child's presumed emotional attachment with her caregiver.’ ” The court concluded by stating that “[i]t is crucial to understand that the overarching inhibitor and obstacle here is the extreme long-term trauma that the respondent has endured. The likelihood that [successful completion of therapy] could occur in the foreseeable future was simply not supported by the evidence in this matter.”
The Appellate Court affirmed the judgment, concluding that the trial court's determinations that the petitioner had made reasonable efforts to reunify the respondent with Gabriella and that the respondent was unable to benefit from the services provided did not constitute clear error. In re Gabriella A., supra, 154 Conn.App. at 186, 191, 104 A.3d 805. This certified appeal followed.
On appeal to this court, the respondent claims that the trial court's finding that she was unable to benefit from the services provided was not supported by the record. Specifically, the respondent contends that because the trial court expressly stated that it relied on Franklin's testimony in arriving at its finding, the court should have found that any failure of the respondent to rehabilitate was not due to any inability to benefit from services, but rather due to the petitioner's provision of the wrong services, that is, the wrong type of therapy. The respondent predicates her argument on her claim that because the court relied heavily on Franklin's testimony, it must have credited the portions of his testimony that opined both that the type of therapy provided to the respondent by Coker was not appropriate, and that she could benefit from appropriate therapeutic treatment. We disagree that the trial court's decision should be read in a manner so contrary to the applicable standard of review. We conclude that there is sufficient evidence in the record to support the trial court's finding that the respondent was unable to benefit from the services provided by the petitioner.
Subsequent to the Appellate Court's decision in the present case, this court clarified the applicable standard of review of an appeal from a judgment of the trial court pursuant to § 17a–112 (j). We review the trial court's subordinate factual findings for clear error. In re Shane M., 318 Conn. 568, 587, 122 A.3d 1247 (2015). We review the trial court's ultimate determination that a parent has failed to achieve sufficient rehabilitation for evidentiary sufficiency, that is, we consider “whether the trial court could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify its [ultimate conclusion].... When applying this standard, we construe the evidence in a manner most favorable to sustaining the judgment of the trial court.” (Internal quotation marks omitted.) Id., at 588, 122 A.3d 1247. We apply the identical standard of review to a trial court's determination that a parent is unable to benefit from reunification services. See In re Jorden R., 293 Conn. 539, 558–59, 979 A.2d 469 (2009). That is, we review the trial court's ultimate determination that a respondent parent was unwilling or unable to benefit from reunification services for evidentiary sufficiency, and review the subordinate factual findings for clear error. Id. “[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.) Id., at 559, 979 A.2d 469.
In our review of the record for evidentiary sufficiency, we are mindful that, as a reviewing court, “[w]e cannot retry the facts or pass upon the credibility of the witnesses.” (Internal quotation marks omitted.) Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 220, 435 A.2d 24 (1980). Rather, “[i]t is within the province of the trial court, when sitting as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence.” (Internal quotation marks omitted.) Burton v. Mottolese, 267 Conn. 1, 40, 835 A.2d 998 (2003), cert. denied, 541 U.S. 1073, 124 S.Ct. 2422, 158 L.Ed.2d 983 (2004). Moreover, it is within the province of the trier of fact to “accept or reject parts of the testimony of a single witness.” Vitale v. Gargiulo, 144 Conn. 359, 363, 131 A.2d 830 (1957).
There is ample evidence in the record to support the trial court's finding that the respondent was unable to benefit from reunification services. Although the court's oral decision appeared to rely primarily on Franklin's testimony regarding the respondent's personality traits, the court subsequently clarified that it had looked to the entire record in arriving at its findings. A review of that evidence supports the trial court's finding that although the respondent was engaging in services, her belief that she had no mental health issues that required treatment presented such an enormous barrier to recovery within a reasonable time period that it rendered her unable to benefit from reunification services.
The record reveals that in June, 2012, the respondent began attending six months of individual counseling sessions with Radiance. Various reports prepared by Radiance employees substantiate the conclusion that the respondent's inability to face the effect that her trauma history continued to have on her present behavior and emotional health was a strong impediment to recovery. In a clinical assessment prepared by Nancy Burgos, a clinical consultant with Radiance, Burgos identified the following goals for the respondent: learning and recognizing the patterns of her behaviors, as well as the impact that those behaviors have on her children and family; developing a safety plan to protect herself and her children; developing coping skills to help reduce her symptoms of depression, improve her social functioning and resolve areas of conflict; and identifying situations, thoughts and feelings that trigger inappropriate anger responses, and replacing those actions with age appropriate coping skills. Burgos' assessment noted that the respondent had “experienced significant trauma, loss and abandonment throughout her life.” At least in part because of that history, Burgos observed, the respondent's life “has been a series of poor and reckless decisions that have not had a positive outcome for her or her children.” Accordingly, Burgos concluded, the respondent's unresolved trauma presented a significant obstacle to the attainment of her therapeutic goals.
Draughn, who provided individual counseling to the respondent, testified that before the respondent could function as an effective parent, she needed to deal with her history of trauma. In her discharge summary, Draughn noted that although the respondent had made some progress in dealing with her own trauma, such as beginning to reflect on her childhood experiences and developing some coping skills, her overall progress toward her parenting goals had been inadequate. Draughn particularly noted that the respondent continued to struggle to gain insight into any link between her childhood trauma and her current behaviors.
Draughn attributed the respondent's failure to make adequate progress to three factors. First, she cited the respondent's irregular attendance at counseling sessions. Specifically, although the respondent was scheduled to meet with Draughn for one session each week, she frequently missed sessions, sometimes attending only once each month. In total, the respondent missed ten of her twenty-four scheduled sessions with Draughn. Second, the settings of the therapy sessions were not sufficiently private to be conducive to the intensive therapy that the respondent needed. Third and most relevant to our analysis, Draughn's discharge summary observed that the respondent's internal defense mechanisms of denial and projection prevented her from being able to identify inappropriate past parenting, choices, and experiences, thus blocking positive growth. Draughn's last observation stated in different words the same opinion offered by Franklin: the bar to the respondent's recovery was her belief that she did not have any problems that required treatment, and her tendency to shift blame to others for her misfortunes. Draughn's discharge summary, therefore, supports the trial court's conclusion that the respondent's failure to progress was due to internal factors.
The record does not reveal why Draughn was unable to meet with the respondent in a more private setting.
The respondent's assessment at Wheeler noted her history of trauma. Beverly Coker, the respondent's subsequent therapist, testified that she began by exploring the respondent's childhood trauma and then prompted her to connect those experiences to her current perceptions and behaviors. Derek A. Franklin, a clinical psychologist who evaluated the respondent in August, 2013, also opined that the respondent needed to address her trauma before she could gain any level of insight into her present situation.
The record of the respondent's participation in the nonoffending caregivers group starkly illustrates the link between the respondent's failure to deal with her trauma history and her lack of progress toward her goal of providing a safe environment for Gabriella. Although the respondent received a certificate of attendance for the course, Dyton wrote a supplemental letter expressing concerns regarding the respondent's ability to support and protect her children. In the letter, Dyton noted that the respondent shared freely and extensively in the group, but her sharing was focused on her own childhood victimization, and not on the abuse suffered by her children. Additionally, most of the respondent's sharing focused on expressing anger and a desire for revenge. Finally, Dyton observed that the respondent had a tendency to dominate the group and showed little awareness or response to other members' sharing and feelings.
As we have already observed, although Coker recommended reunification, her assessment of the respondent's progress was consistent with the trial court's conclusion. Specifically, Coker testified that the respondent was beginning to respond to the therapy and had made progress, but that she was “not there completely.” The respondent, Coker stated, was “processing the depth of the trauma and its impact.” Coker recommended additional therapy, and stated that the focus of future sessions would include “working through painful experiences of the past, i.e., trauma.” Her testimony, therefore, supported the trial court's conclusion that although the respondent was receiving some benefit from therapy, it was simply not enough, given Gabriella's needs.
The evidence presented regarding the respondent's visitation with Gabriella reinforces the conclusion that the respondent's progress was insufficient. Gloria Walker, the department social worker case aide assigned to supervise the respondent's visitation with Gabriella, testified that during visits the respondent often spent approximately one half of her visitation time “venting” with Walker rather than visiting with her daughter, who played on her own during this time. The court remarked on this behavior in its oral decision on the motion for a stay, noting that the respondent was using visitation to obtain extra counseling for her own issues rather than to spend time bonding with her child. The court observed that the respondent's failure to avail herself fully of the opportunity to visit with her child was one of many illustrations of the fact that although the respondent technically was “participating” in reunification services, she was not “internalizing” the therapy and education that had been provided to her. Indeed, the respondent's behavior during visitation evidenced the same inability to focus on her child's needs that she displayed during the nonoffending caregivers program.
Against this backdrop, Franklin's testimony raised serious concerns, not only about the impact of the respondent's mental health issues on her current ability to parent a child, but also about her ability to effectively address those issues in therapy, even over the long term. Franklin interviewed and conducted testing on the respondent over the course of two days. On the basis of that evaluation, he diagnosed the respondent as suffering from post-traumatic stress disorder, social anxiety disorder and partner relationship problems. Although she did not present with enough symptoms to support a diagnosis of borderline personality disorder, the evidence was sufficient to confirm borderline personality traits. In his written report, Franklin observed that the respondent was “highly anxious and defensive.” Her performance on a standard psychological test, the Personality Assessment Inventory, produced elevated scores suggesting mood dysregulation, paranoia and socialization problems.
Franklin further noted that the respondent “monitors her environment closely for evidence that others are out to mistreat her,” and, that due to her preoccupation with paranoid thoughts, she may have difficulty concentrating, leading to problems with decision making. He explained in his summary that the respondent “is hyper-vigilant and anticipates interpersonal problems with little clear evidence.” Her interactions are driven, he noted, “by her heightened distrust of others and significant fears that she will be abused in some fashion.” Franklin's interview of the respondent during the evaluation appears to confirm this profile. For instance, when asked why the petitioner had become involved with her family, the respondent replied that the case was part of a “huge conspiracy,” and that there had never been any allegations of abuse or neglect. She additionally claimed that the petitioner had “lie[d]” when the petitioner informed her that Erica refused to see her.
The respondent's performance on another test, the Thematic Apperception Test, further underscored concerns regarding her paranoia, ability to engage in positive social interactions and her lack of insight and judgment. Her responses to test questions suggested that she is “frequently angry, sensitive to criticism and believes that she is targeted for harsher consequences than others. She is easily angered and unlikely to back down from conflicts. The use of physical and verbal aggression is likely employed to resolve interpersonal problems.” Her results on a third test, the Parent Stress Index Test, yielded high scores in the attachment area, which suggests that the respondent may not feel a sense of emotional closeness with her child, or that she may have a real or perceived inability to observe and understand her child's feelings. Her frustration with her competencecould lead to resentment and anger toward the child. She also scored high in the area of life stressors, which could impact her sense of competence.
Franklin's report acknowledged that the results were not clear as to whether the respondent's score in this area related to both children or only to Erica.
As the majority notes, the adequacy of Coker's treatment in addressing the respondent's trauma is also in dispute. The trial court did not make a finding in this respect. However, because the petitioner did not wait to receive a progress report from Coker before moving to terminate the respondent's parental rights, this issue is not particularly relevant to my analysis. See footnote 3 of this opinion. Even assuming Coker's treatment was ideal, the petitioner's failure to look into the respondent's progress remains, in my view, highly problematic.
Franklin also considered the respondent's history of relationships with others, including with her seven children, none of whom is living with her. Franklin noted that the respondent has “a pattern of unstable and intense interpersonal relationships” and a history of “inappropriate expressions of intense anger.” He expressed concern that the respondent is likely to continue having problems controlling the expression of her anger. He also expressed concern that because of the respondent's attachment issues, the possibility of benign neglect with respect to Gabriella was strong. Franklin explained that benign neglect refers to a parent's emotional unavailability to the child. Franklin emphasized the detrimental, long lasting effect that such a condition has on the emotional development of a child of Gabriella's tender age.
Despite the significant emotional and mental health issues revealed during testing, the respondent, Franklin noted, “is generally satisfied and sees little reason to change....” Accordingly, Franklin concluded, she is “unlikely to benefit from treatment.” He added that although the respondent was “capable of engaging in services ... long-term treatment efficacy [was] not likely.” The respondent, he elaborated, simply believed that she had no problems to address in therapy. Franklin also testified that, consistent with this belief, the respondent also tends to blame other people for her misfortunes, and does not accept responsibility for what has happened to her. Franklin concluded that the “potential for further abuse or neglect regarding Gabriella should be considered high as [the respondent] has yet [to] resolve her own trauma history. While ... Coker's assessment of [the respondent] showing improvement should not be discounted, the current data, review of the available history and interview with [the respondent] support severing [her] ties with her children.”
Franklin's testimony confirms what the remainder of the evidence in the record already demonstrates: because the respondent is unable to recognize that she has parenting issues that require treatment, she cannot benefit from reunification services, at least not within a reasonable time for her to be able to parent Gabriella. All of the treatment providers, even Coker, agreed with the assessment that the respondent still had significant work to do in addressing her history of trauma. Moreover, addressing her own trauma is only the predicate to connecting the effect of that trauma on her ability to be a good parent. Franklin's testimony supports the conclusion that, while it is possible that the respondent may at some point in her life overcome her internal resistance to making that connection, recovery, if it ever happens, will be too late given the needs and age of Gabriella. Given the existing record, particularly viewed in light of Franklin's testimony, it is clear that the cumulative effect of the evidence was sufficient to justify the trial court's conclusion that the respondent was unable to benefit from reunification services.
We are unpersuaded by the respondent's argument that because Franklin testified both that Coker was providing the respondent with the wrong type of therapy and that the respondent could have benefited from appropriate services, his testimony provided support only for the conclusion that the respondent was unable to benefit from inappropriate services. The respondent's argument is premised on a misunderstanding of the role of a reviewing court. Our role is to examine the record to determine whether there is sufficient evidence to support the trial court's conclusion. The respondent points to evidence that would support the opposite conclusion. As we have explained, however, the trial court, as the fact finder, was free to accept or reject portions of Franklin's testimony. Vitale v. Gargiulo, supra, 144 Conn. at 363, 131 A.2d 830. Therefore, the respondent's argument, that because the trial court relied on Franklin's testimony in finding that the respondent was unable to benefit from reunification services, we must infer that the court agreed with Franklin's testimony that Coker provided the wrong type of therapy to the respondent, misconstrues the standard of review.
As we have explained, the trial court relied on the portions of Franklin's testimony that supported the determination that the respondent was unable to benefit from any type of therapy in sufficient time to be able to parent Gabriella. It was the respondent's own internal obstacles to recovery that prevented her from being able to benefit from the provided services, not the nature of those services. The mere fact that a different trier of fact reasonably could have arrived at different findings based on Franklin's testimony—namely, that the respondent's failure to rehabilitate was not due to her own inability to benefit from services but due to the department's provision of the wrong type of therapy—does not provide a basis for us to conclude that there was insufficient evidence to support the trial court's finding.
We do not suggest that such a finding would be reasonable, as that issue is not presented in this appeal. We observe, however, that the record reveals that Franklin's testimony that Coker provided the respondent with the wrong type of therapy was based on his mistaken belief regarding the nature of the therapy that Coker was providing to the respondent. Specifically, Franklin testified that in his twenty to thirty minute conversation with Coker, she informed him that she was providing the respondent with insight oriented therapy. It was his opinion that the respondent needed to receive trauma focused, cognitive behavioral therapy.
Coker testified, however, that she did provide the respondent with trauma focused, cognitive behavioral therapy as part of an integrative approach to therapy. Specifically, Coker testified that after she had established a therapeutic relationship with the respondent during the initial sessions, she began working with her on her trauma. Coker began to delve into the respondent's extensive trauma history, beginning with her childhood poverty and victimization by her stepfather, and ending with the removal of her children. To address the respondent's trauma, Coker employed a combination of cognitive behavioral therapy, insight therapy and relaxation techniques.
Franklin revealed his lack of knowledge of the fact that Coker was providing trauma focused, cognitive behavioral therapy to the respondent when he was asked whether his opinion would change if he learned that Coker had provided trauma based therapy to the respondent. He responded that “this is the first I'm hearing of that.” His opinion, therefore, that Coker was providing the wrong type of therapy was based on incorrect information.
The respondent's argument is also inconsistent with the court's statements, which expressly attributed the respondent's failure to rehabilitate to her inability to engage meaningfully in therapy due to her belief that she had no problems that required treatment. In its July 24, 2014 articulation, the court pointed to Franklin's testimony that in her therapy, the respondent was merely “going through the motions” because she did not believe that she had any problems. The court then stated that irrespective of, inter alia, the nature of the services provided to the respondent, she would not recover in time because “the overarching inhibitor and obstacle [to recovery] is the extreme long-term trauma that the respondent has endured.” That statement, taken together with the court's reliance on Franklin's testimony that the respondent was merely “going through the motions” in therapy, clarifies that the court concluded that the respondent failed to achieve a significant degree of rehabilitation, not due to the nature of the services provided to her, but because of her own inability to benefit from reunification services—specifically, her inability to engage meaningfully in the treatment that she needed to recover from her extensive trauma in a way that allowed her to provide safe and nurturing parenting—to encourage the belief that within a reasonable time, considering the age and needs of Gabriella, the respondent could assume a responsible position in Gabriella's life.
We observe that the dissent's position, which is that “the question of whether the petitioner made reasonable efforts to reunify the respondent with her child is inextricably linked to the question of whether the respondent can benefit from such efforts,” is directly in conflict with the factual finding of the trial court that the respondent's inability to benefit from reunification services was not at all due to the nature of the services provided, but rather was due to the respondent's own belief that she did not have any problems that required treatment. The trial court's subordinate factual finding regarding the cause of the respondent's inability to benefit is subject to clearly erroneous review. In re Jorden R., supra, 293 Conn. at 559, 979 A.2d 469. The dissent's statement to the contrary improperly applies plenary review.
Applying the proper standard of review, we cannot say that the trial court's finding that the respondent's inability to benefit was not due to the nature of the services provided to her is clearly erroneous. Accordingly, as we explained in In re Jorden R., supra, 293 Conn. at 552–53, 979 A.2d 469, the petitioner must prove either that it made reasonable efforts or that the respondent was unable to benefit, not both.
The petitioner essentially forced the respondent to take part in a game of Calvinball to avoid termination of her parental rights, which she inevitably lost. See 2 B. Watterson, The Complete Calvin and Hobbes (2005) p. 292; see also N. Lapsatis, “In the Best Interests of No One: How New York's ‘Best Interests of the Child’ Law Violates Parents' Fundamental Right to the Care, Custody, and Control of Their Children,” 86 St. Johns L.Rev. 673, 673–74 (2012). Calvin, a character in the famous comic Calvin and Hobbes, created Calvinball with the intention of creating the most disorganized game possible. N. Lapsatis, supra, at 673. The only permanent rule in Calvinball is that the game can never be played with the same rule twice. Id. In Calvinball, any player can change the rules at any point in the game, the score is kept without any logic or consistency, and penalties are given in any way deemed fit. Id.; see also id., at 673 n.6 (“ ‘The score is still Q to 12!’ ”). The petitioner apparently observed these rules by prescribing treatment by which the respondent could avoid termination, changing that treatment after determining that it was inadequate, blaming the respondent for not progressing quickly enough, and then seeking to terminate the respondent's parental rights without giving her time to succeed in the proper treatment. See id., at 673–74 (arguing that “New York family law has adopted the Calvinball approach [to] determining [child] custody disputes”). With the petitioner changing the rules of the game in this manner, the respondent had no chance of avoiding termination of her parental rights.
The judgment of the Appellate Court is affirmed.
In this opinion ROGERS, C.J., and PALMER, EVELEIGH and McDONALD, Js., concurred.
ROBINSON, J., with whom ZARELLA, J., joins, dissenting.
I disagree with the trial court's determination, upheld by the Appellate Court, that the petitioner, the Commissioner of Children and Families,1 made reasonable efforts to reunify the respondent with her minor child, Gabriella A.2 In re Gabriella A., 154 Conn.App. 177, 188, 104 A.3d 805 (2014). I am troubled by the fact that the petitioner moved to terminate the respondent's parental rights after admitting that her initial treatment was inadequate, referring her for more appropriate treatment, and not inquiring into her progress in that treatment before filing the petition. Even more problematic is the petitioner's reliance on the respondent's insufficient progress in her previous therapy—which the petitioner referred her to and later admitted did not address her particular issues—in seeking to terminate her parental rights. I, further, disagree with the majority that the petitioner met the burden of proving that the respondent was unable to benefit from reunification services under these circumstances. I, therefore, respectfully dissent.
In order to terminate parental rights, the petitioner is required to prove by clear and convincing evidence that the petitioner “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 efforts....” General Statutes § 17a–112 (j)(1). “The word reasonable is the linchpin on which the [petitioner's] efforts in a particular set of circumstances are to be adjudged.... 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.... [R]easonable efforts means doing everything reasonable, not everything possible.” (Internal quotation marks omitted.) In re Samantha C., 268 Conn. 614, 632, 847 A.2d 883 (2004).
Given the fact intensive nature of this inquiry, I briefly recount the petitioner's efforts to reunify the respondent with Gabriella.3 In December, 2011, the petitioner referred the respondent to Radiance Innovative Services (Radiance) for a mental health assessment, parent education classes, and case management. The petitioner also referred the respondent to the Wheeler Clinic (Wheeler) for substance abuse screenings and counseling. The respondent met weekly with a case manager at Radiance, and completed a seven session counseling program at Wheeler. Wheeler reported no substance abuse issues and “successfully” discharged the respondent in February, 2012. During this time, the respondent also attended a nonoffending caregiver group at the Greater Hartford Children's Advocacy Center at Saint Francis Hospital and Medical Center (advocacy center).
The respondent's traumatic history was revealed early on in her treatment. In December, 2011, the respondent's assessment at Wheeler noted that she has experienced “extremely traumatic event[s],” including “[s]exual or physical assault” and the “[s]udden death of someone close” to her. The assessment also notes that she has “intense recollections” of those traumatic life events. Between January and February, 2012, the respondent's participation in the nonoffending caregiver group demonstrated her trauma, as much of her sharing focused on the sexual abuse that she, herself, had suffered as a child.4 The respondent's mental health assessment at Radiance in May, 2012, revealed that her childhood in Jamaica was “full of chaos, hurt, pain, trauma, and survival.”5 The examiner concluded that the respondent has experienced “significant trauma, loss, and abandonment” and that her “unresolved issues related to her sexual trauma continue to present emotional barriers....” The examiner at Radiance further noted that “[i]t is of utmost importance that [the respondent] becomes involved in a therapeutic process that will address her trauma....”
Despite this consensus, the respondent's subsequent therapy did not address her trauma. Between June and December, 2012, the respondent attended weekly therapy sessions with Tamar Draughn, a licensed professional counselor at Radiance. The respondent made some progress with regard to her anger and depression, but was unable to address her extensive childhood trauma or connect it to her current behavior. Draughn attributed this failure to the fact that the sessions were often conducted in a public place, where the respondent could not speak openly about her painful past.6 Additionally, because the respondent missed ten of her twenty-four scheduled sessions, Draughn pointed to the inconsistency in sessions as a factor in failing to address her trauma history. Three of those ten sessions, however, were cancelled through no fault of the respondent. The respondent's medical issues and a court date accounted for several other missed sessions, which she tried to reschedule. During this time, the respondent began weekly supervised visits with Gabriella.
Radiance discharged the respondent on December 7, 2012, when its contract with the petitioner expired. The respondent's discharge summary stated the reason for the discharge was “[p]ayment approval ended.” Draughn, who completed the discharge summary, added that “[d]ue to inconsistencies in therapy sessions [the respondent] has not made adequate progress” and that she “struggles to gain insight to a connection between her traumatic experiences and her current perspective and behaviors.” Draughn explained that they had only just begun to address the respondent's trauma when the contract between Radiance and the petitioner ended. Instead, their work had focused on the respondent's emotional issues. Draughn testified that, in hindsight, her “ideal treatment plan” would have been beginning with trauma therapy, which would have allowed the respondent to gain insight into her current perspectives and behavior.7 All of the respondent's evaluators agreed that the respondent needed to deal with her trauma issues before she could gain insight into her present situation.8 Thus, upon discharge, Draughn recommended that the respondent receive intensive trauma therapy in a private, more traditional setting.
On the basis of this recommendation, the petitioner referred the respondent to Beverly Coker, a licensed clinical social worker at New Beginnings Family Center, LLC. The respondent began attending weekly therapy sessions with Coker in January, 2013.9 Coker noted that the respondent has “extensive trauma history that she has failed to address” and that a goal of treatment was to “delve into her trauma history and decrease the adverse effects it has.” Coker's reports demonstrate that the respondent was “processing the depth of the trauma and its impact,” gaining a “good understanding” of its effects, and had “fully explored her physical and psychological history while growing up ... and her methods of parenting.” According to Coker, the respondent was insightful, highly motivated, and missed few, if any, sessions.
On March 14, 2013, before receiving any report from Coker as to the respondent's progress in trauma therapy, the petitioner filed a petition to terminate the respondent's parental rights. The petitioner stated that “although [the respondent] has engaged in services, she either did not do so consistently or has failed to gain substantial benefit....” The respondent's assigned social worker with the petitioner testified that the respondent “had not been consistent with attending ... therapy and therefore was not addressing her trauma issues....”
The trial court found that the petitioner's efforts to reunify the respondent with her child were reasonable. The Appellate Court agreed, holding that, “in light of the entire record,” the petitioner's filing of the termination petition without inquiring into the respondent's progress in trauma therapy did not render the rest of its efforts unreasonable. In re Gabriella A., supra, 154 Conn.App. at 186–87, 104 A.3d 805. The Appellate Court pointed to the petitioner's referrals as well as the respondent's inadequate progress in addressing her trauma during therapy. Id., at 184–88, 104 A.3d 805.
The standard of review of the trial court's decision with respect to whether the petitioner made reasonable efforts at reunification is identical to that for whether the respondent is unable to benefit from reunification services. See In re Jorden R., 293 Conn. 539, 552–53, 979 A.2d 469 (2009). Thus, I review the trial court's ultimate determination that the petitioner made reasonable efforts at reunification for evidentiary sufficiency. In re Shane M., 318 Conn. 568, 588, 122 A.3d 1247 (2015). I review the trial court's factual findings underlying this determination for clear error. Id., at 587, 122 A.3d 1247.
In my view, the unreasonableness of certain aspects of the petitioner's reunification efforts is worth noting. Although the respondent's trauma history was revealed early in the process, the petitioner did not recommend trauma therapy until one year into her treatment. When it was, the petitioner then faulted the respondent for not addressing her trauma earlier. At the same time, the petitioner acknowledged that the respondent's treatment thus far had been insufficient for addressing her trauma. The petitioner then sought to terminate the respondent's parental rights without examining her progress in trauma therapy.10 In my view, the petitioner should not deal with parents who are struggling with mental health issues and making a bona fide effort to rehabilitate in this manner. See In re Natalya C., 946 A.2d 198, 204 (R.I.2008) (“[i]t is unreasonable for [the petitioner] to rely on parents ... who lack necessary expertise and perspective, and who labor under the burden of [mental health] challenges, to diagnose their own problems”). As we have previously stated, “an important goal of the child protection statutes, in addition to protecting children from abuse and neglect, is to preserve family integrity by ... teaching parents the skills they need to nurture and care for their children.” Teresa T. v. Ragaglia, 272 Conn. 734, 754, 865 A.2d 428 (2005).
I commend the petitioner for continuing to provide reunification services to the respondent even though the petitioner had determined that she was unable to benefit from such services. See In re Jorden R., supra, 293 Conn. at 552–53, 979 A.2d 469.
I realize that it sometimes takes time to uncover a client's trauma in therapy, and once the extent of the respondent's trauma was discovered, the petitioner properly referred her for more appropriate treatment. The petitioner's efforts up to this point seem fairly reasonable, given the complicated issues with the respondent and her family. I merely take issue with the timing of the petitioner's move to terminate the respondent's parental rights in this unique context.
The respondent's substantial compliance with reunification services further belies the reasonableness of the petitioner's actions. A parent's cooperation, or lack thereof, with reunification services informs our analysis of what efforts are reasonable under the circumstances. See In re Alexander T., 81 Conn.App. 668, 672–73, 841 A.2d 274 (2004) (stating that, in making reasonable efforts determination, “parallel analysis of the respondent's response to those efforts is necessary” and holding that “the efforts of the [petitioner] were reasonable in light of the respondent's conduct ” [emphasis added] ), cert. denied, 268 Conn. 924, 848 A.2d 472 (2004). For example, in In re Joseph M., 158 Conn.App. 849, 855–58, 120 A.3d 1271 (2015), the Appellate Court recently held that the petitioner's reunification efforts were reasonable when a father failed to attend therapy, his child's medical appointments, or his administrative case reviews, and became increasingly unreliable in attending supervised visits with his child.
Unlike In re Joseph M. and many other termination cases, this is not a situation in which the parent's lack of cooperation thwarted the petitioner's efforts. The respondent successfully completed a seven session counseling program at Wheeler and several substance abuse evaluations. The respondent's assessment noted that she was “[on time], oriented, and ... cooperative....” The respondent has consistently attended her weekly case management meetings with Radiance as well as her weekly supervised visits with Gabriella while attending therapy. The respondent also attended six of the seven sessions of the nonoffending caregiver group at the advocacy center and scored well on the subsequent test administered by the program. See footnote 4 of this opinion.
See, e.g., In re Destiny D., 86 Conn.App. 77, 79–80, 83–84, 859 A.2d 973 (mother erratically attended rehabilitative programs, resisted treatment recommendations, received positive drug tests, and refused to sign releases that would have allowed petitioner to make additional referrals), cert. denied, 272 Conn. 911, 863 A.2d 702 (2004); In re Alexander T., supra, 81 Conn.App. at 674, 841 A.2d 274 (mother failed to attend drug screenings and evaluations and did not visit her children for nine months); In re Ebony H., 68 Conn.App. 342, 346, 789 A.2d 1158 (2002) (mother arrested several times, failed to attend anger management and domestic violence counseling, and repeatedly tested positive for cocaine use).
The trial court's finding that the respondent was using her visits with Gabriella to obtain additional counseling sessions for herself is questionable. Although the petitioner's facilitator testified that the respondent spent approximately 50 percent of the visit conversing with her once they got to know one another, several months into the visitation, she explained that during that time, the respondent was sitting on the floor talking to the child, playing games with the child, and “d[id]n't ignore the child.” Additionally, many of their discussions focused on the child's well-being. The facilitator testified that the respondent and the child interacted well together. Franklin, the psychologist who evaluated the respondent in August, 2013, and observed the respondent and her child together, agreed, stating that the respondent and her child had developed some sort of bond.
The petitioner greatly relied on the respondent's missed therapy sessions with Draughn in seeking to terminate her parental rights. Draughn, however, explained that she had cancelled some sessions in the months where she only saw the respondent once or twice. Although Draughn noted the inconsistency in sessions in her discharge summary, she consistently maintained that the missed sessions played little part in the decision to discharge the respondent. Regardless, the respondent had been in therapy with Coker for approximately two months before the petitioner filed the termination petition, and had consistently attended those sessions. Coker testified that the respondent attended “at least” twelve sessions between January and March, 2013. She noted that the respondent was “consistent” and “punctual” in attending sessions and “call[ed] ahead the few times that she was unable to attend.” However, because the record indicates that the petitioner did not inquire into the respondent's progress in trauma therapy, the petitioner did not learn this information before seeking to terminate her parental rights.
Draughn testified that she would have liked to continue working with the respondent. She stated that the respondent never verbalized an unwillingness to engage in therapy and was otherwise “very engaged.” The following colloquies demonstrate that the respondent was discharged because the contract was ended by the petitioner. One colloquy occurred between Draughn and counsel for the respondent:
“Q. But [the petitioner] ended your contract.
“A. Correct.
“Q. You weren't asking for them to end your contract, correct?”
“A. No, I did not ask.
“Q. Okay. No one at Radiance said we don't want to work with [the respondent] anymore, right?
“A. No.
“Q. And that is not why [the petitioner] ended your service to her?
“A. No.”
A similar colloquy occurred between Draughn and counsel for the petitioner:
“Q. Okay. And what was the reason for the discharge?
“A. Well, the primary reason was [the respondent's] contract ended and it was not renewed.
“Q. Okay. Were there other reasons? ...
“A. I am not aware of any other reasons.”
Another colloquy occurred between Draughn and counsel for the respondent:
“Q. ... When you say she didn't meet her goals, can you just elaborate on that? [Did] you mean [that] she didn't even try to meet them ...?
“A. No. I mean the contract expired prior to [the respondent] reaching her goals.
“Q. Okay. So was she in the process of reaching her goals before the contract expired?
“A. She had her own limitations in the process, but the process was happening.”
Finally, Draughn offered the following testimony regarding the respondent's prognosis: “I do believe with good clinical work and vested work from the [respondent] that she can achieve adequate goals.”
In expressing these concerns, I do not contend that the respondent has rehabilitated to the point where she can successfully parent her child. The reasonableness of the petitioner's reunification efforts is distinct from the respondent's rehabilitative progress. See, e.g., In re Melody L., 290 Conn. 131, 148–49, 962 A.2d 81 (2009) (reasonable efforts finding differs from analysis of whether grounds for termination exist), overruled in part on other grounds by State v. Elson, 311 Conn. 726, 746–47, 91 A.3d 862 (2014). I do not disagree with the trial court's finding that the respondent “failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time....” General Statutes § 17a–112 (j)(3)(B)(ii). I simply question whether the recommendation of counsel for the minor child that Gabriella remain committed to the petitioner and “go from there” would have been more appropriate than termination in the present case.
I understand that placing a child into a stable and permanent environment as soon as feasibly possible is critically important to the child's proper development. “[S]table and continuous care givers are important to normal child development. Children need secure and uninterrupted emotional relationships with the adults who are responsible for their care.... Repeatedly disrupted placements and relationships can interfere with the children's ability to form normal relationships when they become adults.” (Citations omitted; internal quotation marks omitted.) In re Davonta V., 285 Conn. 483, 494–95, 940 A.2d 733 (2008). In the present case, however, although timing was understandably a concern given the age and needs of Gabriella, the petitioner shoulders at least some responsibility for the delay in the respondent's progress in therapy.
The trial court noted that it arrived at its decision in light of Gabriella's need to develop a bond with her caregiver immediately.
I also realize that the petitioner must make difficult decisions about the well-being of the children in her care on a daily basis. See In re Davonta V., 98 Conn.App. 42, 48, 907 A.2d 126 (2006) (acknowledging that determination of what is in best interest of child is “difficult task”), aff'd, 285 Conn. 483, 940 A.2d 733 (2008). Understandably, “[t]he primary concern of [the petitioner] is the safety of [the child].” (Internal quotation marks omitted.) In re Christine F., 6 Conn.App. 360, 368, 505 A.2d 734, cert. denied, 199 Conn. 808, 508 A.2d 769 (1986). Devastating consequences can result when children return to homes where they are neglected or abused, and the petitioner plays an important role in preventing these situations. Nonetheless, the petitioner should not take lightly the “complete severance” of the relationship between a parent and child, especially when the parent has cooperated with reunification services and shown the potential for rehabilitation.
“Both the United States Supreme Court and this court recognize that a parent's interest in making ‘decisions concerning the care, custody, and control of [his or her] children’ ... Fish v. Fish, 285 Conn. 24, 41, 939 A.2d 1040 (2008); is a fundamental right protected by the fourteenth amendment to the United States constitution. See In re Devon B., 264 Conn. 572, 584, 825 A.2d 127 (2003); see also Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). This right encompasses ‘the most essential and basic aspect of familial privacy—the right of the family to remain together without the coercive interference of the awesome power of the state.’ ... Lehrer v. Davis, 214 Conn. 232, 237, 571 A.2d 691 (1990).” In re Jason R., 306 Conn. 438, 464–65, 51 A.3d 334 (2012) (Zarella, J., dissenting). Indeed, it is among the oldest fundamental liberty interests recognized by the United States Supreme Court. Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); see Roth v. Weston, 259 Conn. 202, 218, 789 A.2d 431 (2002).
Thus, as my dissent noted in the matter of In re Jason R., 129 Conn.App. 746, 774, 23 A.3d 18 (2011), aff'd, 306 Conn. 438, 51 A.3d 334 (2012), the termination of an individual's parental rights is one of the most drastic actions that a state takes against its citizens. “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), 181 Conn. 638, 640, 436 A.2d 290 (1980); see also General Statutes § 17a–93 (5). Accordingly, it is through this judicial lens that this court must thoroughly review the termination of an individual's parental rights.
In light of the seriousness of the intrusion on the respondent's constitutional rights, I disagree with the trial court that the petitioner's efforts to reunify the respondent with her child may be deemed “reasonable.” I find it very disturbing that the petitioner, at least in part, caused the respondent to receive the wrong type of therapy and then, due to time constraints, was unable to give her sufficient time to rehabilitate in trauma therapy before seeking to terminate her parental rights. I am deeply troubled by what appears to be the petitioner abruptly giving up on the respondent after initially sending her for improper therapy, referring her for more appropriate therapy, and not glancing at her progress before seeking to terminate such an important constitutional right.
Furthermore, under these circumstances, I cannot agree with the majority that the petitioner met the burden of proving that the respondent is unable to benefit from reunification services. When seeking to terminate a parent's parental rights, the petitioner must prove either the reasonableness of reunification efforts or the parent's inability to benefit from such efforts by clear and convincing evidence. General Statutes § 17a–112 (j)(1); In re Jorden R., supra, 293 Conn. at 552–53, 979 A.2d 469. In the present case, however, the question of whether the petitioner made reasonable efforts to reunify the respondent with her child is inextricably linked to the question of whether the respondent can benefit from such efforts. Because the petitioner's efforts were unreasonable, we cannot determine whether the respondent could have benefited from reasonable efforts. Specifically, because the petitioner did not provide trauma therapy until one year into the respondent's treatment, we cannot know whether the respondent could have benefited from trauma therapy and sufficiently rehabilitated in time to meet Gabriella's needs had she received it at the beginning of her treatment. We can only speculate on this scenario. At the very least, however, the petitioner's contention that the respondent was unable to benefit from therapy, when she had been in the appropriate therapy for only two months, was questionable. With such an important constitutional right at stake, I cannot agree that the petitioner proved, by clear and convincing evidence, that the respondent was unable to benefit from reunification services on these facts.
I recognize that the petitioner need not prove both reasonable efforts at reunification and the parent's inability to benefit from reunification services. I merely note that, under these unique circumstances, the petitioner's failure to give the respondent time to rehabilitate in the proper therapy renders us unable to conclusively determine whether the respondent can benefit from reunification services.
The majority contends that the trial court found that the respondent's inability to benefit from reunification services stemmed solely from her own “belief that she had no problems that required treatment,” and, accordingly, that the services provided to her played no part in this determination. The trial court, however, also based its conclusion on the extent of the respondent's trauma and the time it would take to address that trauma. For example, the court noted that Franklin contributed “two things” to its decision, one of which was his conclusion that “the child can't wait.” The court stated that “there has been a tremendous amount of trauma in [the respondent's] background. And it's very sad. It's not something that [she] can really work out in [one] year, in two years maybe....” The court nonetheless credited Coker's opinion that the respondent was progressing in trauma therapy. Thus, my contention that the inadequacy of the respondent's therapy tainted her ability to benefit from therapy is not inconsistent with the trial court's factual findings, and I need not determine that those findings were clearly erroneous to reach my conclusion.
I, therefore, respectfully dissent.