Opinion
AC 46551
12-18-2023
IN RE ANGELINA S. et al.
Matthew C. Eagan, assigned counsel, for the appellant (respondent father). Joshua Perry, solicitor general, with whom, on the brief, was William Tong, attorney general, for the appellee (petitioner). Ingrid Swanson, for the minor children.
Matthew C. Eagan, assigned counsel, for the appellant (respondent father).
Joshua Perry, solicitor general, with whom, on the brief, was William Tong, attorney general, for the appellee (petitioner).
Ingrid Swanson, for the minor children.
Alvord, Elgo and Prescott, Js.
ALVORD, J.
54The respondent father, Troy S., appeals from the judgments of the trial court, rendered in favor of the petitioner, the Commissioner of Children and Families, terminating his parental rights with respect to his minor children, A and M, pursuant to General Statutes § 17a-112 (j) (3) (B) (i). On appeal, the respondent claims that the trial court improperly determined that the Department of Children and Families (department) made reasonable efforts to reunify him with his children, he was unable or unwilling to benefit from reunification services, and he failed to achieve such a degree of personal rehabilitation as would encourage the belief that, within a reasonable period of time, considering the ages and needs of the children, he could 55assume a responsible position in the children’s lives. We affirm the judgments of the trial court.
A guardian ad litem was appointed for the respondent mother, Lindsay B., who was found to be incompetent. The court also terminated her parental rights. Because Lindsay B. is not participating in this appeal, we refer in this opinion to the respondent father as the respondent.
The attorney for the minor children has filed a statement adopting the appellate brief of the petitioner.
The following facts and procedural history are relevant to our consideration of the respondent’s appeal. The department has been involved with A and M throughout their entire lives. The department received a report in March, 2019, when A was born, that A’s mother, Lindsay B., was taking methadone and benzodiazepines, leading the hospital to treat the newborn A under the neonatal abstinence syndrome protocol. Upon A’s discharge from the hospital to the home of Lindsay B. and the respondent, the respondent was, identified as A’s primary caretaker because he was compliant at that time with methadone treatment at the APT Foundation (APT). On April 3, 2019, the petitioner filed a neglect petition as to A. On July 30, 2019, the court adjudicated A neglected and ordered a three month period of protective supervision. A motion to extend the period of protective supervision for six additional months was granted on October 22, 2019. The court again extended the period of protective supervision for an additional six months, which would have elapsed on September 18, 2020.
The period of protective supervision was extended with the condition that Lindsay B have no unsupervised contact with A.
M was born in the kitchen of Lindsay B.’s home in August, 2020. Lindsay B. had received no prenatal care during her pregnancy with M. At the hospital where M and Lindsay B. were transported after M’s birth, both the respondent and Lindsay B. were "observed to be passed out." Although Lindsay B. was "slurring her speech, drooling, and falling asleep midsentence," the respondent advocated for her to receive benzodiazepines. At one point, hospital staff were unable to wake 56the respondent, who was sleeping while holding newborn M, even by touching his arm. M showed symptoms of neonatal abstinence syndrome and remained in the hospital for two weeks after her birth, during which time the respondent did not return to visit. On August 28, 2020, the petitioner sought orders of temporary custody as to A and M, vested in the children’s paternal great-aunt and great-uncle, and filed a neglect petition as to M. The court sustained the orders of temporary custody on September 2, 2020.
On April 14, 2021, the court adjudicated M neglected and committed her to the custody of the petitioner. The court also modified the prior disposition with respect to A and committed her to the custody of the petitioner. The court ordered specific steps as to the respondent.
On November 29, 2021, the petitioner filed petitions to terminate the parental rights of the respondent and Lindsay B. with respect to A and M. A trial on the termination of parental rights was held over three dates beginning in January, 2023, before the court, Chavey, J. The court heard the testimony of Jessica Biren Caverly, who was qualified as an expert in forensic psychology; Melanie Vitelli, clinical coordinator from ’r kids Family Center (R Kids); Courtney White, a department social worker; Artemisia Cardona, a department investigative social worker; Loren Pappagoda, a department ongoing services social worker; and the respondent. The court also admitted documentary evidence. Only one exhibit was admitted over the objection of the respondent’s counsel.
The court also heard the testimony of Ignacio Cerdena, an expert in psychiatry, who conducted the competency evaluation of Lindsay B.
On March 29, 2023, the court issued its memorandum of decision, in which it terminated the parental rights of the respondent and Lindsay B. The court found by clear and convincing evidence that the department had 57made reasonable efforts to reunify A and M with the respondent and that the respondent was unable or unwilling to benefit from the department’s efforts. The court found that, although the respondent had complied with some of his specific steps, "he persistently refused to cooperate with [the department’s] recommended services regarding substance use and mental health, instead insisting either that he did not need or want the services to which he was referred or that he had complied when in fact he had not."
The court found that the respondent had resumed methadone maintenance following a back injury and knee surgery, as an alternative to other forms of pain management. The respondent testified that he had " ‘bottle privileges’ " with APT and picks up thirteen bottles of methadone every other week. The respondent explained that APT requires that he attend one group session per month and one meeting per month. Following M’s birth, the department became concerned about the respondent’s substance use. Specifically, there were instances when the respondent appeared impaired, and he belatedly dis- closed that he was receiving mental health medication management from Michelle Muzyka, an advanced practice registered nurse, who also had been treating Lindsay B. The respondent testified that, in March, 2019, he began treating with Muzyka, whom he saw every two months or sometimes every three months for panic attacks and anxiety. Muzyka prescribed the respondent alprazolam, which is a benzodiazepine, 58 and gabapentin. She reported that the respondent already had been prescribed his medication at the time he began seeing her. Muzyka stated that she was treating the respondent for generalized anxiety disorder and attention deficit hyperactivity disorder. She further reported that she did not provide therapy to the respondent.
The trial court found that, following a medication management intake assessment with Lindsay B. on February 1, 2020, Muzyka "immediately prescribed benzodiazepines for [her]. [The department] made numerous requests of [Lindsay B.] to sign a release that, would permit [the department] to communicate with … Muzyka. Eventually, [Lindsay B.] signed a release in October, 2020, but … Muzyka repeatedly failed to respond to [the department’s] contacts, which included letters, faxes, phone calls, and emails.’’
The court noted that the APT "records also reveal [that] Muzyka was prescribing [the respondent] dextroamp, an amphetamine in 20 [milligram] tablets, with sixty tablets for thirty days."
Although Muzyka failed to respond to the department’s attempts to contact her, she did respond to Caverly, who prepared the court-ordered psychological evaluation.
The department consulted with its Regional Resource Group, which recommended that the respondent receive treatment at Hill Health Center, and the department, on multiple occasions beginning in August, 2020, referred the respondent there for a mental health evaluation and medication management. The respondent testified that, after he told Hill Health Center that he needed only an evaluation but not treatment because he already had a provider, he was told the center did not do evaluations if the patient would not be seeking treatment there as well. The " respondent never engaged with Hill Health Center, and he advised the department that he did not want to change treatment providers, He "expressed concern that Hill Health Center would not prescribe the benzodiazepines he was getting through … Muzyka, which he said he needed for his anxiety."
The department also advised the respondent 'that "it was concerned he was treating with the same provider … Muzyka, [who] was prescribing benzodiazepines to [Lindsay B.] following her prior abuse of and illicit use of benzodiazepines."
The court noted the recommendations of Wendy Levy, a psychologist who performed a court-ordered evaluation of the respondent in the spring of 2021. Levy’s recommendations directed the respondent to "[e]ngage in therapy to learn coping skills to address 59anxiety and distress tolerance rather than rely solely on anxiety medication, [and] [p]sychiatric reevaluation (Psychologist recommended the APT Foundation, however they do not offer long-term mental health services. Clinicians are only available for acute concerns)." Levy’s recommendations were incorporated into specific steps issued on June 1, 2021, of which the court took judicial notice. The court found that the respondent did not comply with "crucial elements" of his specific steps, including failing to participate in a psychiatric evaluation.
The court rejected as not credible portions of the respondent’s testimony. Specifically, the court did not credit his testimony that he had no knowledge of Levy’s recommendations and that he had done everything the department had asked of him.
The court also rejected as not credible the respondent's testimony that he had engaged in therapy with someone named "Dr, Sullivan" in 2022. The court noted discrepancies in the respondent’s description of the frequency of the therapy and that the respondent testified that he did not know what kind of doctor Sullivan was or where he was located., His testimony also suggested that he had received the referral to Sullivan in 2018 at the latest but that he began treating with Sullivan in 2022. Last, the court noted that the respondent never told the department that he was engaging in therapy.
The court continued: "In any event, even if the respondent … did engage in mental health therapy a few times in 2022 with a Dr. Sullivan, he admitted to ending that therapy by mid-2022. He testified he had then intended to start therapy with a partner of … Muzyka but had not done so because he had been ‘so busy’ and had not ‘had a chance’ in the ‘hectic’ six months prior to his trial testimony in January, 2023. Such limited participation in mental health therapy falls far short of the goal in the specific steps, based on Dr. Levy’s recommendation, that the respondent … '[e]ngage in therapy to learn coping skills to address anxiety and distress tolerance rather than rely solely on anxiety medication.’"
The court found that the department also offered the respondent visitation and case management services. "[The] respondent … had visits with the children at their relative placement until January, 2021, when his behavior led the relatives with whom the children were 60placed to discontinue the visits. Thereafter, the respondent … had weekly video visits, followed by [department] supervised visits at [the department’s] offices. [The department] then referred both the respondent [and Lindsay B.] to R Kids for the Therapeutic Family Time program, which was a twelve week visitation and parenting program, of which the respondent … attended nine sessions. One of the sessions he missed was the closing session, which R Kids requested he attend with his lawyer and mental health provider ‘so we could discuss everything together.’ Contrary to R Kids’ records, the respondent … testified at trial that he was never told about the closing meeting. This is yet another example of the [respondent’s] lack of credibility, as the evidence is clear and convincing that R Kids did communicate with him about the closing meeting." (Footnote omitted.) Although the respondent "generally did well" in his visits, R Kids did not recommend reunification because he was not compliant with his court-ordered specific steps.
The department referred the respondent to the Quality Parenting Center for visitation and parenting coaching in November, 2021. The respondent required little redirection from the parenting coach and he continued in that program through December, 2022. After the Quality Parenting Center program, the respondent had supervised two hour visits in his home.
In conclusion, the court found that the department had "made consistent efforts throughout this case to engage the respondent … in appropriate services to address his substance use and mental health. Even after Dr. Levy recommended reunification in 2021, however, the respondent … refused to comply with any of her recommendations that would have risked changing his medications." The court found that the respondent was unable or unwilling to benefit from the department’s efforts.
The court also found that the respondent’s anxiety condition "was far from well controlled …." In 2022, 61the respondent tested positive for fentanyl but maintained that he had not knowingly used it, which the court found not credible in part because he gave conflicting accounts as to how he might have ingested it inadvertently. Specifically, the court found not credi- ble the respondent’s contention, following positive fentanyl tests in April, June, and July, 2022, that the fentanyl could have remained in his system for ninety days, whereas guidelines contained in the APT records indicated that fentanyl generally is detectable for only up to three days. The court also found that the respondent misrepresented APT’s response to the positive tests for fentanyl and that the respondent misrepresented to APT his role in caring for A and M. Specifically, he reported to APT on more than one occasion that he had his children in his care part-time, when the children in fact were living full-time with their foster parents, the children’s paternal great-aunt and great-uncle. The court found that it appeared the respondent "was seeking to use his (unfounded) statements about his role as a caregiver to his children in his quest to avoid or minimize a step-down of his bottle privileges."
"[H]e told APT that he had not knowingly used fentanyl, but had used marijuana in a vaping device that must have been laced with fentanyl. He said he used marijuana to address stress. Specifically, the respondent … told APT in July, 2022, he was using marijuana twice a day, every morning and every night, to help alleviate stress and back pain. In this context, the [respondent's] insistent refusal to seek—or continue—mental health therapy or to engage in a psychiatric evaluation played a significant role in his continued mental health challenges."
The court also referenced evidence that the respondent was " ‘agitated’ " and " ‘argumentative’ " when APT discussed its concerns regarding the positive test results for fentanyl, and he told APT that, if he did not receive his take-home bottles of methadone, he would "‘just buy it off the street’ …. " The respondent presented at that time with " ‘heavy’ " eyes, " ‘as if he was 62under the influence of benzodiazepines which is prescribed.’" When APT discussed his third positive test for fentanyl with him, the respondent again was agitated and used racial slurs. The court also referenced APT records that indicated in June and July, 2022, he was slurring his words and appeared to be under the influence of substances.
The court found that the respondent had failed to achieve such a degree of personal rehabilitation as would encourage the belief that, within a reasonable time, considering the ages and needs of the children, he could assume a responsible position in their lives. Specifically, it found that the respondent had "failed to acknowledge and address the persistent issues of substance use and mental health, which are his primary barriers to reunification, and instead has denied that he has any problems that are not adequately addressed through his treatment with … Muzyka and [APT’s] methadone maintenance program. He has nonetheless resorted to self-medicating with marijuana, allegedly to address stress and back pain, while denying or ignoring the significant risks of fentanyl, whether he ingested it deliberately or inadvertently. The respondent … was repeatedly observed by [APT] to be under the influence in mid-2022, and he became angry and argumentative when APT discussed the step-down with him following his positive fentanyl tests.
"The court finds that the respondent… consistently chose to refuse [the department’s] recommendations rather than risk having to change his current medication regimen. At trial, he conceded that, despite [the department’s] repeated requests and encouragements—which were incorporated into the June 1, 2021 specific steps based on Dr. Levy’s recommendations—for him to participate in an evaluation and treatment at Hill Health Center, he refused to do so. While he 63asserted at trial that, without ever telling [the department], he did engage in mental health therapy in 2022, the court does not credit this testimony …. In any event, however, any therapy in which the respondent … claims to have engaged was short-lived and did not improve his mental health or reduce his dependence on anxiety medication.
"The court thus finds that the respondent … is no more suitable as a sober, competent caregiver for his young children now than he was in August, 2020. He has failed and refused to comply with the court-ordered specific steps that could have helped him gain better control of his substance use and mental health, reduce his reliance on antianxiety medication, ensure his medication regimen is appropriate, and ultimately serve as a sober and stable parent to his children. He has repeatedly misrepresented his actions, his knowledge of the specific steps, and other matters described above in his effort to appear more compliant than he in fact was. The respondent … has failed to rehabilitate by refusing to take [the department’s] recommendations seriously or to make any meaningful progress toward the goals in the court-ordered specific steps.…
"Because of the ample time the respondent … has had to rehabilitate, and because he is not trending toward successful rehabilitation but instead has continued to resist, [the department’s] efforts and been noncompliant with the specific steps that the court ordered nearly two years ago, no additional time for rehabilitation is warranted."
In the dispositional phase of the proceedings, the court made findings as to each of the criteria set forth in § 17a-112 (k) and concluded that the termination of the respondent’s parental rights was in the children’s best interests. Accordingly, the court rendered judgments terminating the respondent’s parental rights and 64appointing the petitioner as the children’s statutory parent. This appeal followed.
[1–4] We first set forth our standard of review. "[T]he court’s determination as to whether the department made reasonable efforts toward reunification is a legal conclusion drawn from the court’s subordinate factual findings. Therefore, we apply a clearly erroneous standard of review as to the court’s underlying factual findings, and we review the court’s legal determinations of reasonable efforts and of failure to rehabilitate for sufficient evidence." (Internal quotation marks omitted.) In re Omar L, 197 Conn. App. 499, 589–90, 231 A.3d 1196, cert. denied, 335 Conn. 924, 233 A.3d 1091 (2020), cert. denied sub nom. Ammar I. v. Connecticut, — U.S. —, 141 S. Ct. 956, 208 L. Ed. 2d 494 (2020); see also In re Emily S., 210 Conn. App. 581, 584, 270 A.3d 797 ("[similarly, in reviewing a trial court’s determination that a parent is unable to benefit from reunification services, we review the trial court’s ultimate determination … for evidentiary sufficiency, and review the subordinate factual findings for clear error" (internal quotation marks omitted)), cert. denied, 342 Cohn. 911, 271 A.3d 1039 (2022). In applying the evidentiary sufficiency standard of review, "[w]e look to see 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 65quotation marks omitted.) In re Judah B., 221 Conn. App. 387, 397, 300 A.3d 1253 (2023). As the respondent recognizes in his principal brief, his three claims all are predicated on the same issue. Specifically, the respondent claims that the department’s efforts were not reasonable because the department "required [him] to engage in a service that would have stripped him from his medical providers, and because the department offered no medical basis for requiring the shift …." As to the court’s alternative finding, the respondent contends "that it was error for the trial court to determine that he was unable or unwilling to benefit from services where the basis of that decision is his unwillingness to participate in an unreasonable service." Finally, as to the adjudicatory ground, the respondent argues that he "cannot be deemed to have failed to rehabilitate based upon his unwillingness to participate in services that the department failed to prove were necessary or warranted." Each of the respondent’s claims is premised on his contention that the department was requiring him to "disengage from his current medical provider" and "switch providers," a premise which we determine is not supported by the record.
Although the respondent claims that evidentiary sufficiency is an improper standard of review in child protection cases, he also concedes that, as an intermediary appellate court, we are bound by our Supreme Court's decision in In re Shane M., 318 Conn. 569, 588, 122 A.3d 1247 (2015), in which the court held that "the appropriate standard of review is one of evidentiary sufficiency …."
The respondent in this appeal does not challenge the court’s finding that the termination of his parental rights was in the best interests of the children,
Specifically, the respondent states in his brief that "[t]he argument in both prongs of the reasonable efforts claim is rooted in the same fundamental concern," and that, "[i]n many ways, [the] claim [with respect to the trial court's determination that he failed to rehabilitate] is also linked with the arguments concerning reasonable efforts stated above."
[5] Our careful review of the record reveals that the department did not require the respondent to disengage from Muzyka but, rather, recommended that the respondent engage in therapy and receive a "second opinion" in the form of a psychiatric reevaluation. Specifically, Caverly testified that her recommendation, which was 66also made by Levy, was for the respondent "to complete a psychiatric evaluation with a provider other than his current provider to determine if there were additional or different medications that he could be taking to treat his symptoms instead of relying on the medication that he was taking," Caverly further testified that she would "like a second opinion about what medications he should be on and what the dosages should be" and that she would like "someone else to evaluate those medications to see if they’re the appropriate and best medications for him." Ac- cordingly, the respondent’s 67interrelated claims fail because they are based on a premise that is not supported by the record.
The respondent cites the following colloquy between the respondent’s counsel and Pappagoda:
"Q. Did you ever seek a court order to have Ms. Muzyka respond to you?
"A. No.
"Q. Okay. So, now, one of the reasons that you state [the respondent] is not in compliance with his substance abuse treatment or you said he tested positive for benzos at the APT Foundation?
"A. He consistently tests positive for benzodiazepines at the APT Foundation, however, he has an active prescription for those medications.
"Q. So, he should test positive for them?
"A. Right.
"Q. Okay. And, throughout the life of this case, he’s had, a legally valid prescription for them, hasn’t he?
"A. Yes.
"Q. Okay. And, as of today, or as of the last time you were able to get contact as far as the APT Foundation is concerned, he’s in compliance with them?
"A. Yes.
"Q. Okay. Now, you wanted to send him to the Hill Health, Center for prescription or medication evaluation. Is that true?
"A. For mental health, which would include therapy and medication management.
"Q. And you wanted them to have him put him on alternative treatment?
"A. That was the Regional Resource Group recommendation, yes.
"Q. So, the Regional Resource Group was insisting he change his legal prescription provider he’s been seeing for quite some time?
"A. Yes.
"Q. That was the—that they insisted on it?
"A. Yes. That was the recommendation, yes."
However, the colloquy continues with the following:
"Q. And they sent him to the Hill Health Center with the idea that that’s the result they're gonna get?
"A. With what result that they’re gonna get?
"Q. That they’re gonna tell—they’re gonna try and take him off of benzodiazepine. I can’t even pronounce it, Benzos.
"A. The Regional Resource Group consultation, yes, recommended Hill Health Center with the hope that [the respondent], would receive therapy and medication management that would possibly not include benzodiazepine medication.
"Q. Possibly. You don’t know that they would change it?
"A, Right. We don’t know."
The way in which this testimony developed, with Pappagoda ultimately recognizing that the result of the reevaluation could not be predicted prior to the respondent’s undertaking that process, is consistent with the other evidence at trial that suggests that the department’s recommendation was for a "second opinion."
Moreover, the concern underlying the department’s recommendation was, as the trial court expressly found, that the respondent had "failed to acknowledge and address the persistent issues of substance use and mental health, which are his primary barriers to reunification …." Our appellate courts have stated that a "failure to acknowledge the underlying personal issues that form the basis for the department’s concerns indicates a failure to achieve a sufficient degree of personal rehabilitation." (Internal quotation marks omitted.) In re Nevaeh G.-M., 217 Conn. App. 854, 880, 290 A.3d 867, cert. denied, 346 Conn. 925, 295 A.3d 418 (2023). As detailed by the trial court, the respondent refused to cooperate with department recommended services, which included not only the psychiatric reevaluation but also therapy "to learn coping skills to address anxiety and distress tolerance rather than rely solely on anxiety medication." See, e.g., In re Shane M., 318 Conn. 569, 590, 122 A.3d 1247 (2015) (respondent’s refusal to undergo medical assessment by psychiatrist for controlling diagnosed attention deficit hyperactivity disorder and other mental health issues contravened specific steps requiring him to cooperate with court-ordered 68evaluations and testing and with recommendations regarding assessment and treatment).
The respondent’s failure to comply with these "crucial elements" of his specific steps, as identified by the trial court, was particularly concerning given the numerous reports of the respondent presenting as impaired, including while holding M in the hospital, while holding M during a visit in 2020, while riding home from a visit in 2021, and later when engaging with APT following his positive test results for fentanyl. The court ultimately found that the respondent was "no more suitable as a sober, competent caregiver for his young children now than he was in August, 2020." Moreover, the court found the respondent not credible as to many aspects of his testimony, particularly his claimed lack of knowledge of the department’s recommendations regarding therapy, his contention that he, in fact, had attended therapy, and his explanations surrounding his positive test results for fentanyl. See, e.g., In re Bianca K., 188 Conn. App. 259, 270, 203 A.3d 1280 (2019) ("[i]t is the exclusive province of the trier of fact to weigh conflicting testimony and make determinations of credibility, crediting some, all or none of any given witness’ testimony" (internal quotation marks omitted)).
[6] Having rejected the respondent’s contention that the department required him to disengage from his medical provider and having reviewed the record before us, as well as the briefs and the arguments of the parties on appeal, we conclude that the cumulative effect of the evidence, construed in a manner most favorable to sustaining the judgments, was sufficient to justify the court’s ultimate conclusions that the department had made reasonable efforts to reunify the children with the respondent, that the respondent was unwilling or unable to benefit from the services the department offered, and that the respondent failed to achieve such 60a degree of personal rehabilitation as would encourage the belief that, within a reasonable time, considering the ages and needs of the children, he could assume a responsible position in their lives. See, e.g., In re Harmony Q., 171 Conn. App. 568, 575, 157 A.3d 137, cert. denied, 325 Conn. 915, 159 A.3d 232 (2017).
The judgments are affirmed.
In this opinion the other judges concurred.