Opinion
AC 45891
05-10-2023
IN RE DANIEL D. et al.
Matthew C. Eagan, assigned counsel, for the appellant (respondent mother). Evan O'Roark, assistant attorney general, with whom was Jennifer C. Leavitt, assistant attorney general, and, on the brief, William Tong, attorney general, for the appellee (petitioner).
Matthew C. Eagan, assigned counsel, for the appellant (respondent mother).
Evan O'Roark, assistant attorney general, with whom was Jennifer C. Leavitt, assistant attorney general, and, on the brief, William Tong, attorney general, for the appellee (petitioner).
Alvord, Cradle and Clark, Js.
CRADLE, J. The respondent mother, Chrystal P., appeals from the judgments of the trial court terminating her parental rights as to two of her minor children, Daniel D. and James D. The respondent claims that the court improperly (1) admitted into evidence certain documents under the business records exception to the hearsay rule; and (2) concluded that the Department of Children and Families (department) had made reasonable efforts to reunite her with James or that she was unable or unwilling to benefit from reunification efforts. We affirm the judgments of the trial court. The following facts and procedural history, as set forth by the trial court, are relevant to our resolution of the claims presented in this appeal. The respondent's involvement with the department dates back to 1997, when the department first became aware of the respondent's conduct of threatening to harm her children. The respondent, on multiple occasions, used these threats of harm to her children as leverage in altercations with their respective fathers. The respondent was arrested after two such incidents in 2017, wherein she threatened to harm her one year old daughter, Lillyanne. Thereafter, the petitioner, the Commissioner of Children and Families, filed a motion for an ex parte order of temporary custody and a neglect petition as to Lillyanne. Since 2017, the department consistently has sought to have the respondent engage in mental health treatment and parenting services to gain insight into the detrimental impact of her mental health and trauma history on her parenting abilities. The respondent has demonstrated a pattern of "dogged resistance" to adjusting her parenting approach in response to professional feedback and she consistently has been "oppositional and confrontational" with department employees and service providers. In 2019, the respondent gave birth to another child, Richard, who also was adjudicated neglected and committed to the care and custody of the petitioner. In 2021, the respondent's parental rights as to Lillyanne and Richard were terminated on the ground that she failed to achieve an appropriate degree of personal rehabilitation as would encourage the belief that, within a reasonable time, she could assume a responsible position in the children's lives. In affirming the termination of the respondent's parental rights as to Lillyanne and Richard, this court noted that "[t]he court's conclusion that the [respondent] had failed to rehabilitate was predicated on its finding that the respondent ... had resisted efforts to address the key issues underlying her history of threats or acts of violence against her children and had minimized the nature of the events that led to [their] removal from her care." In re Lillyanne D. , 215 Conn. App. 61, 68, 281 A.3d 521, cert. denied, 345 Conn. 913, 283 A.3d 981 (2022).
The parental rights of the respondent father also were terminated in this action. Because the father has not appealed from the termination of his parental rights, any reference herein to the respondent is to the mother only.
As referenced herein, the respondent has additional children who are not subject to this proceeding. Any reference herein to the minor children is to Daniel and James only.
In her brief to this court, the respondent states that her "claim regarding reasonable efforts is specific to James because, with regard to Daniel, reasonable efforts to reunify were not required because the court had previously approved a permanency plan other than reunification ...."
The attorney for the minor children filed a statement adopting the position of the petitioner, the Commissioner of Children and Families.
While the petitioner's case as to Lillyanne and Richard was pending, the respondent gave birth to Daniel, in April, 2020, and to James, in May, 2021. Daniel and James were removed from the respondent's custody shortly after their respective births on the basis of predictive neglect. The department incorporated Daniel and James into the ongoing reunification efforts provided to the respondent as to Lillyanne and Richard.
On April 27, 2020, the petitioner filed a motion for an order of temporary custody and a petition of neglect as to Daniel. An order of temporary custody was issued ex parte the same day. The court ordered specific steps and set goals for the respondent to facilitate her reunification with Daniel. The specific steps required the respondent, inter alia, to engage in parenting counseling and individual counseling. The goals set by the department required the respondent to make progress in the following areas: (1) articulating responsibility for her parenting choices, how they have impacted her children, and demonstrating an ability to consistently use good decision making and judgment in regard to parenting her children; (2) demonstrating improvement in her parenting skills and adequate knowledge of child development; and (3) demonstrating an understanding of her mental health issues and how they impact her ability to provide for her children.
On April 14, 2021, the court approved a permanency plan of termination of the respondent's parental rights and adoption in the interest of Daniel and found that the petitioner had made reasonable efforts to achieve the plan. On May 20, 2021, Daniel was adjudicated neglected and committed to the care and custody of the petitioner.
On May 28, 2021, the petitioner filed a motion for an order of temporary custody and a neglect petition as to James. An order of temporary custody was issued ex parte the same day. On July 8, 2021, the order of temporary custody was sustained. The court issued the same specific steps and set goals for the respondent to facilitate her reunification with James that it had set for Daniel, but the specific goals were more narrow in scope. The goals set by the department required the respondent, inter alia, to make progress toward (1) identifying and addressing her history of personal violence, traumas, and threats, identified by David M. Mantell, a clinical and forensic psychologist, who had been appointed by the court to evaluate the respondent and provide recommendations with respect to reunification with her children, and engaging in focused treatment for exposure to family violence, both physical and verbal, as well as thoughts about violence and her use of violent threats with at least two marital partners and at least two of her children; and (2) gaining a better understanding of her children's needs for emotional comfort and support and tactile nurturance and softer parenting techniques.
The petitioner filed petitions to terminate the respondent's parental rights as to Daniel and James on June 17, 2021, and December 15, 2021, respectively, on the ground that the respondent had failed to achieve an appropriate degree of personal rehabilitation as would encourage the belief that, within a reasonable time, considering the ages and needs of the minor children, she could assume a responsible position in their lives. The termination petitions, along with the neglect petition as to James, were consolidated for trial. The consolidated trial proceeded on May 16 and 19, 2022.
On July 15, 2022, the court filed a memorandum of decision wherein it adjudicated James neglected and terminated the respondent's parental rights as to both Daniel and James. The court found that the department had made reasonable efforts to reunify the respondent with Daniel and James and that the respondent was unwilling to benefit from those efforts. The court concluded that the respondent had failed to achieve an appropriate degree of personal rehabilitation as would encourage the belief that, within a reasonable time, considering the ages and needs of Daniel and James, she could assume a responsible position in their lives. The court further concluded that the termination of the respondent's parental rights would be in the best interests of Daniel and James. Accordingly, the court terminated the respondent's parental rights as to Daniel and James and appointed the petitioner as their statutory parent. This appeal followed.
The respondent has not appealed from the neglect adjudication.
I
The respondent first claims that the court improperly admitted into evidence two documents under the business records exception to the hearsay rule and that
Section 8-4 (a) of the Connecticut Code of Evidence provides: " ‘Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.’ "
the admission of those documents constituted harmful error because it was necessary for the court to rely on those documents to conclude that the respondent failed to rehabilitate. Without deciding whether the challenged documents were properly admitted into evidence, we conclude that their admission was harmless.
At the termination trial, the petitioner sought to introduce into evidence two written summaries prepared by a United Services, Inc. (USI) staff member in 2018, when the respondent participated in two reunification programs, Therapeutic Family Time and Reunification and Therapeutic Family Time (RTFT). These summaries were prepared in the context of reunification efforts as to Lillyanne. The petitioner did not call the USI staff members who authored or approved the summaries as witnesses at trial but, instead, sought to admit the summaries into evidence during the direct examination of Jennifer L. Andrews, a department social worker assigned to the respondent's case. The respondent objected to the admission of the summaries on the ground that the summaries constituted inadmissible hearsay. The petitioner responded that the summaries fell within the business records exception to the rule against hearsay. The respondent objected "to the records being admitted as full exhibits for any purpose other than to show that the parents participated in the service." The court overruled the respondent's objection and admitted the summaries as full exhibits. The respondent took exception to the court's ruling and further argued that the documents "contain hearsay to which this witness cannot testify as to the reliability or credibility of any conclusions or statements made therein."
The department contracts with and provides referrals to USI, which provides reunification and other support services for families involved with the department.
On appeal, the respondent claims that the trial court improperly admitted the summaries under the business records exception to the hearsay rule and that their admission was harmful. Specifically, the respondent argues that the summaries "not only included the [USI] workers’ opinions of the [respondent's] progress, but also contained recommendations relevant to the ultimate question of both the previous case and this one, whether the respondent should be reunified with her children." In so arguing, the respondent cites to the following allegedly inadmissible and harmful statements or conclusions in the summaries: the respondent is forceful and unaware of age appropriate expectations; the respondent should continue individual therapy to address trauma; the respondent should engage in couple's therapy to address intimate partner violence; the respondent should continue parenting support services and a reunification assessment; RTFT is not confident in the respondent's ability to meet Lillyanne's needs and to keep her safe; and, if Lillyanne is returned to her, the respondent "will not be willing to implement the strategies taught during the intervention and [will] resort to what [she] feels is best." Even if we were to conclude that the court improperly admitted the summaries into evidence under the business records exception to the hearsay rule, the respondent has not demonstrated that she was harmed by their admission. "Our standard of review regarding challenges to a trial court's evidentiary rulings is that these rulings will be overturned on appeal only where there was an abuse of discretion and a showing ... of substantial prejudice or injustice. ... Additionally, it is well settled that even if the evidence was improperly admitted, the [party challenging the ruling] must also establish that the ruling was harmful and likely to affect the result of the trial." (Internal quotation marks omitted.) In re Jordan T. , 119 Conn. App. 748, 762, 990 A.2d 346, cert. denied, 296 Conn. 905, 992 A.2d 329 (2010). "It is well established that if erroneously admitted evidence is merely cumulative of other evidence presented in the case, its admission does not constitute reversible error." Swenson v. Sawoska, 215 Conn. 148, 155, 575 A.2d 206 (1990). "In determining whether evidence is merely cumulative, we consider the nature of the evidence and whether any other evidence was admitted that was probative of the same issue as the evidence in controversy." (Internal quotation marks omitted.) DeNunzio v. DeNunzio , 320 Conn. 178, 204, 128 A.3d 901 (2016).
Despite the well settled principle that an objection to the admission of a document must specify the portions of the document that are purportedly inadmissible; State v. William C. , 267 Conn. 686, 704–705, 841 A.2d 1144 (2004) ("[O]nce a report qualifies as a business record, its proponent is not required to show the source of information for each item contained in the record. The burden is on the objecting party to specify objections to the inadmissible parts of the report." (Internal quotation marks omitted.)); the respondent failed to identify to the trial court the specific portions of the summaries that she alleged were inadmissible. Because we conclude that the admission of the summaries was harmless to the respondent, we need not address whether her objection was sufficiently specific to preserve her claim.
Here, the respondent argues that "the record establishes that the trial court, although never explicitly stating so, relied upon the conclusions contained in the inadmissible hearsay evidence to shape its conclusions and its decision on the ultimate question in this case." She contends that "[t]he conclusion and impression that [she] was intractable and demonstrated ‘continued resistance,’ which was crucial to the trial court's decision with regard to the failure to rehabilitate, comes from the opinions of the [USI] workers that were improperly admitted into evidence." The respondent's argument is belied by the record, which is replete with evidence of the respondent's resistance to the department's recommendations.
For example, at the termination trial, the court admitted into evidence two social studies, one as to each child, which were authored by Andrews. In the social studies, which were dated June 17, 2021, and December 15, 2021, Andrews noted that, since Lillyanne came into the care of the department in 2017, the respondent has minimized her mental health issues and the consequent threats that she made to harm Lillyanne. Andrews noted that the respondent had engaged in counseling with Jessica Janczyk for the past two years, but Janczyk was unable to address the respondent's issues because the respondent "refuses to acknowledge [that] there was ever a concern or admit her behaviors." Janczyk reported that she was aware of the respondent's childhood trauma history, but that the respondent continually declined trauma treatment and "would specifically resist any recommendations from the [department]."
Andrews also noted in the social studies that, despite the respondent's participation in some of the recommended services, the respondent "continues to struggle with mental health concerns, has not engaged in any trauma treatment, and continues to demonstrate a lack of coping skills and emotional dysregulation" and that she continues to minimize these concerns. Andrews reported that the respondent continues to resist recommendations by the department and that the respondent often is hostile and confrontational toward department social workers. Andrews also testified at the termination trial. Through her testimony, Andrews detailed the services that were offered to the respondent and highlighted the fact that the "number one identified concern for the department" as to the respondent was her untreated mental health issues. Specifically, Andrews testified that the most important goal for the respondent's treatment has been to "address her previous trauma as a child and then the issues leading to the intimate partner violence and the effects of all of these on her parenting." Andrews indicated that she had communicated with all of the respondent's service providers, including her most recent providers, pertaining to the respondent's need for trauma treatment. She testified that the respondent has maintained that she did not experience any trauma or that, if she did, she has addressed it "in her own way" and she does not feel the need for further trauma treatment. Consequently, in Andrews’ opinion, the respondent has not met the primary goal set by the department. Andrews further testified that the respondent similarly has failed to meet the goals focused on the development of emotional regulatory skills, coping skills, and appropriate expectations for parenting.
Andrews indicated that the department had referred the respondent to numerous treatment services, including individual therapy, couples counseling, mental health and substance abuse treatment, supervised visitation, parenting and reunification services, and psychological evaluation and recommendations.
The court also admitted into evidence, without objection, a report prepared by Mantell, who also testified at trial. In evaluating the respondent, Mantell reviewed the records of and spoke with other service providers who had worked with the respondent since Lillyanne was removed from her custody in 2017. In his report, Mantell described the contents of both of the challenged summaries, often citing the observations and conclusions of the USI staff members verbatim. After conducting his own evaluation of the respondent, Mantell determined, inter alia, that the respondent "does not take responsibility for statements and behaviors that led to the protective placement of her child out of her care .... [S]he does not show a willingness to address her own behaviors or to even acknowledge the concerns that her behaviors [have] caused ...."
Although the respondent did not object to the admission of Mantell's report at trial, she now seeks to undermine his report on the ground that it constituted "stale evidence" because it was written in 2019, prior to the births of Daniel and James. It is well established that the weight accorded to evidence presented at trial is within the sole province of the fact finder. See In re Leo L ., 191 Conn. App. 134, 142, 214 A.3d 430 (2019) ("it is the trial court's role to weigh the evidence presented and determine relative credibility when it sits as a fact finder"). Because Mantell's report was admitted as a full exhibit, without objection, the court was entitled to rely on it to support its findings. See In re Leilah W ., 166 Conn. App. 48, 71, 141 A.3d 1000 (2016).
Moreover, we note that, at a case status conference on August 17, 2021, the department requested an updated psychological evaluation with a new provider and the respondent was supposed to provide a response to that request by September 1, 2021. As of December 15, 2021, the respondent had not agreed to participate in a new evaluation.
Because the information contained within the challenged USI summaries was merely cumulative of other validly admitted evidence contained in Mantell's report, the department's social studies, and the testimony of Mantell and Andrews, the respondent has failed to establish that the result of the trial would have been different had the summaries not been admitted into evidence. Therefore, we conclude that their admission was harmless.
II
The respondent also claims that the trial court erred in concluding that the department made reasonable efforts to reunify her with James and that she was unwilling to benefit from those efforts. We are not persuaded.
"[ General Statutes §] 17a-112 (j) (1) requires that before terminating parental rights, the court must find by clear and convincing evidence that the department has made reasonable efforts to locate the parent and to reunify the child with the parent, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts provided such finding is not required if the court has determined at a hearing ... that such efforts are not appropriate .... Thus, the department may meet its burden concerning reunification in one of three ways: (1) by showing that it made such efforts, (2) by showing that the parent was unable or unwilling to benefit from reunification efforts or (3) by a previous judicial determination that such efforts were not appropriate. ... [I]n determining whether the department has made reasonable efforts to reunify a parent and a child ... the court is required in the adjudicatory phase to make its assessment on the basis of events preceding the date on which the termination petition was filed. ... This court has consistently held that the court, [w]hen making its reasonable efforts determination ... is limited to considering only those facts preceding the filing of the termination petition or the most recent amendment to the petition ....
"Our review of the court's reasonable efforts determination is subject to the evidentiary sufficiency standard of review. ... Under this standard, the inquiry is 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. ... The court's subordinate findings made in support of its reasonable efforts determination are reviewed for clear error." (Citations omitted; internal quotation marks omitted.) In re Ryder M. , 211 Conn. App. 793, 808–809, 274 A.3d 218, cert. denied, 343 Conn. 931, 276 A.3d 433 (2022). In the present case, the court found that the department made reasonable efforts to reunify the respondent with James in that it recommended numerous specific steps and identified goals associated with those steps, and in furtherance of those goals, provided several recommended services and programs to facilitate reunification. The court found: "The petitioner made the appropriate service referrals for the respondent parents to engage in intimate partner violence counseling. The respondent parents denied the existence of intimate partner violence issues and, therefore, were deemed inappropriate for the referred service and were then referred to couples counseling. The petitioner made continuous contact with the respondent parents’ chosen provider ... to share treatment goals as identified by the petitioner and to request updates on their progress in treatment. The petitioner obtained a court-ordered psychological evaluation for the respondent ... to further assist in identifying appropriate services and employed the professional opinion to modify service referrals as necessary. The petitioner made referrals to parental support services for the respondent ... and a referral for a reunification readiness assessment. The petitioner made referrals for individual counseling for both respondent parents and [was] amenable to changes in providers when the respondent parents were unwilling to engage with providers identified by the petitioner due to the respondent parents’ perception that such providers were biased against them simply because these providers were recommended by the petitioner. The petitioner initiated and maintained contact with providers chosen by the respondent parents to inform such providers of the petitioner's identified treatment goals for the respondent parents, to assist providers in treating the respondent parents by sharing information obtained through psychological and neuropsychological evaluations and continued to make efforts to obtain updates on treatment progress despite certain providers having significant delays in responding to such requests. Based on the service referrals made for the respondent parents as ordered in the specific steps, the court finds by clear and convincing evidence that the petitioner has made reasonable efforts to reunify the respondent parents with Daniel and James."
In its memorandum of decision, the court's findings pertain to both of the respondent parents. Because, as noted, the father has not challenged the termination of his parental rights, we address those findings that pertain to either both parents or to the respondent mother only.
Notwithstanding its finding that the department had satisfied its obligations under § 17a-112 (j) (1), the trial court also concluded that the respondent was unwilling to benefit from the department's efforts to reunify her with James. In so concluding, the court reasoned that "the respondent ... has resisted all efforts to address the central issue of concern: parent-child threats of violence and parent-child violence. She has repeatedly refused to engage in the trauma focused treatment necessary for her to make progress regarding her parent-child violence issues with multiple providers and, thereby, demonstrated her unwillingness to benefit from the petitioner's efforts to reunify [her] with Daniel and James. ...
"The record before the court demonstrates that the respondent has cognitive limitations that cause her difficulty in understanding and comprehension. ... However, there is no evidence in the record that demonstrates that such cognitive impairment has made the respondent ... unable to benefit from the services offered. The treatment progress made in other areas stands to counter any such concern by the court as it highlights that the respondent ... has the capacity to understand when appropriate accommodations are made for her and that such accommodations have been employed successfully by numerous providers. Despite such successful implementation of accommodations, the respondent ... has drawn a hard line and maintained that hard line whenever the matter of trauma focused treatment is mentioned. The respondent ... refuses to acknowledge her trauma history and refuses to engage in trauma focused treatment. There is no credible evidence in the record to support a finding that she is unable to benefit from the services provided by the petitioner. For the foregoing reasons, the court finds that the respondent ... [is] unwilling to benefit from the services provided by the petitioner."
On appeal, the respondent claims that the court erred in finding that the department made reasonable efforts to reunify her with James, and that she was unwilling to benefit from those efforts. As to her unwillingness to benefit from the efforts of the department, the respondent claims that the court erred in so finding because there was no evidence that parent-child violence or threats remained a concern, and that there was conflicting testimony regarding the respondent's need for trauma based treatment. To the extent that there was conflicting evidence, "[i]t is axiomatic that the court is free to accept or reject, in whole or in part, the evidence presented by [the parties]." (Internal quotation marks omitted.) Cottrell v. Cottrell , 133 Conn. App. 52, 65, 33 A.3d 839 (2012). Here, the court was free to credit testimony that the respondent did, in fact, still need trauma based therapy. Indeed, this notion is buttressed by the respondent's persistent refusal to discuss or even acknowledge her history of threatening to harm her children. As to the issue of whether parent-child violence and threats of violence remained a concern, Mantell posited: "Threatening to harm a child is a rare child protection issue. It cannot be considered resolved by not talking about it and by rejecting accountability for its occurrence." Additionally, Andrews also testified that the respondent's failure to address her trauma related violence rendered the respondent a continuing threat to her children. Accordingly, the respondent's argument that there was no evidence that parent-child violence or threats remained a concern is without merit. Because the respondent persistently has declined the treatment recommended by the department, the court properly concluded that she was unwilling to benefit from the department's reunification efforts.
Specifically, the respondent faults the trial court for crediting Mantell's opinion that she has a "significant trauma history that has an incredible impact on her current, overall functioning in a parental role" over the opinion of her individual counselor who testified that she had not observed the respondent exhibiting symptoms of post-traumatic stress disorder or that the respondent's "current functioning was impacted by her past abusive environments."
Because we conclude that there was sufficient evidence in the record to support the court's finding that the respondent was unwilling to benefit from reunification services, we need not address whether the court properly found that the department made reasonable efforts to reunite her with James. See In re Gabriella A ., 319 Conn. 775, 777 n.4, 127 A.3d 948 (2015).
The judgments are affirmed.
In this opinion the other judges concurred.