Opinion
AC 45551
02-27-2023
IN RE ISABELLA Q.
David B. Rozwaski, assigned counsel, for the appellant (respondent father). Evan O'Roark, assistant attorney general, with whom were Tess Shaw, assistant attorney general, and, on the brief, William Tong, attorney general, for the appellee (petitioner). Hilliary Lukos, assigned counsel, for the minor child.
David B. Rozwaski, assigned counsel, for the appellant (respondent father).
Evan O'Roark, assistant attorney general, with whom were Tess Shaw, assistant attorney general, and, on the brief, William Tong, attorney general, for the appellee (petitioner).
Hilliary Lukos, assigned counsel, for the minor child.
Prescott, Moll and Cradle, Js.
PRESCOTT, J. The respondent father, Michael Q., appeals from the judgment of the trial court, rendered in favor of the petitioner, the Commissioner of Children and Families, terminating his parental rights with respect to his daughter, Isabella Q. On appeal, the respondent claims that the court improperly concluded that the petitioner established by clear and convincing evidence that (1) pursuant to General Statutes § 17a-112 (j) (1), the respondent was unable or unwilling to benefit from reunification services, (2) the respondent failed to rehabilitate in accordance with § 17a-112 (j) (3) (B) (i), and (3) termination of the respondent's parental rights was in Isabella's best interests pursuant to § 17a-112 (j) (2). We affirm the judgment of the trial court. The trial court found the following facts. Isabella was born in December, 2010, to her mother, Theresa B., and the respondent. The respondent also has two sons, Isabella's half brothers, who reside in Massachusetts with their mother. In September, 2019, the respondent moved from Connecticut to Massachusetts and currently resides there.
In the same proceeding, the court also terminated the parental rights of Isabella's mother, Theresa B. Because she has not appealed from that judgment, we refer to Michael Q. as the respondent and to Theresa B. by name throughout this opinion.
The Department of Children and Families (department) has been involved with Isabella since 2014, when she was first adjudicated neglected. On May 9, 2018, Isabella was again adjudicated neglected and placed under an order of protective supervision until November 9, 2018. Before that order of protective supervision expired, Theresa requested that Isabella be removed from her care. An ex parte motion for an order of temporary custody was granted on August 29, 2018. On September 7, 2018, the court modified the May 9, 2018 disposition from protective supervision to commitment of Isabella to the custody of the petitioner. The department placed Isabella in relative foster care with her maternal great aunt and uncle, and she has lived with them for approximately three and one-half years.
Specific steps were issued to the respondent on May 9, 2018, and final specific steps were issued on September 7, 2018. The final specific steps outlined the actions the respondent should take to facilitate his reunification with Isabella and aimed to address the department's concerns regarding his substance abuse, mental illness, and history of intimate partner violence. In particular, the respondent had unaddressed issues related to marijuana and cocaine abuse, as evidenced by his criminal record, a history of depression and bipolar disorder, and a history of protective orders, some of which required him to have no contact with Theresa and Isabella.
On July 30, 2019, the petitioner filed a petition to terminate the parental rights of the respondent and Theresa, predicated on their failure to achieve a sufficient degree of personal rehabilitation in accordance with § 17a-112 (j) (3) (B) (i). The respondent was duly served a copy of the petition and ordered to appear on August 21, 2019, for a hearing on the matter. At the hearing, he entered a pro forma denial of the allegations in the petition.
The case was continued several times, and the trial on the petition did not commence until August 9, 2021. The trial continued over six nonconsecutive dates and ultimately concluded on January 26, 2022. The petitioner presented testimony from the department social workers who had worked on Isabella's case, her licensed professional counselor, and her foster mother. The respondent testified on his own behalf and called no other witnesses.
Prior to the commencement of trial, the respondent filed a motion to revoke the commitment of Isabella pursuant to General Statutes § 46b-129. The motion to revoke was consolidated with the trial on the termination of parental rights. On the third day of trial, however, the respondent withdrew his motion to revoke.
The trial took place on August 9, August 11, September 21, September 29 and November 18, 2021, and on January 26, 2022.
The court issued its memorandum of decision on April 6, 2022, granting the petition to terminate parental rights. First, the court found, pursuant to § 17a-112 (j) (1), that the department had made reasonable reunification efforts. The court then concluded, pursuant to § 17a-112 (j) (3) (B) (i), that Isabella had been adjudicated neglected in a prior proceeding and, despite being provided specific steps and extensive services, the respondent had failed to achieve a sufficient degree of personal rehabilitation that would encourage the belief that within a reasonable time, considering the age and needs of the child, he could assume a responsible position in Isabella's life.
Isabella's attorney supported the termination of parental rights. Additionally, on appeal, her attorney adopted the petitioner's brief and supports the affirmance of the trial court's decision.
The court found that the respondent had complied with certain specific steps but had failed to comply with others. The court found him to be noncompliant with the specific steps in the following ways: "He has failed to make progress toward identified goals. ... He failed to engage in individual counseling to work on his coping, anger management, and parenting skills. He failed to comply with [the department's] requests to submit to a substance abuse screen, and to keep [the department] updated regarding his household makeup. He has not inquired about, requested to participate [in], or attend[ed] [Isabella's] appointments with her medical, dental, or educational providers. He did not visit [Isabella] as often as [the department] permitted. ... He received therapy and medication management for a brief time in 2018 ... [but] was unsuccessfully discharged on March 1, 2019. ... In January, 2021, he reported to [the department] that he had not re-engaged in therapy, and moreover he didn't need it. He has not reengaged in counseling or medication management. ...
"[He] has a history of [intimate partner violence]. He is not engaged in any mental health treatment, medication management, or domestic violence service[s]. ... He has presented with loud, ‘in your face,’ aggressive, erratic, and hostile behaviors in public places. He has directed it toward [department] staff and foster parents, while invading their personal space, and overtalking them. On more than five occasions he has been verbally aggressive, while raging in and out of rooms yelling at [department] social workers. These behaviors were exhibited during visits with [Isabella] and in her presence. ...
"In September, 2018, [the department] offered [him] weekly visits with [Isabella] supervised by [a visitation provider]. In January, 2019, [the visitation provider] refused to supervise any more visits due to his reported hostile and threatening behavior towards its staff workers. He was discharged unsuccessfully from [that provider] on January 19, 2019. ... In March, 2020, due to [COVID-19 pandemic] regulations, [the department] offered [him] in person visits with [Isabella] for one hour at its office. He declined to participate. From April, 2020, through July, 2020, he travelled to Connecticut [from Massachusetts] seven times to purchase marijuana at the dispensary in [Milford]. The [department] office where he was offered visitation with [Isabella] was about a five minute drive from the dispensary. He never accepted, scheduled, or requested a visit with [Isabella] during the time he came to Connecticut to buy marijuana.
The respondent has a medical marijuana certificate.
"[The respondent] was offered weekly telephone calls with [Isabella] throughout the pandemic. The phone calls were placed at the scheduled times requested by him. He often did not answer the phone. Following some calls between [Isabella] and [the respondent], she was so emotionally distressed a clinical intervention was needed. [Her] therapist described her as being scared and upset after talking with him. Her therapist recommended that [Isabella] be the one to choose if she wants to talk with [him]. Some weeks, after reporting his behavior with her on the phone, she chose not to call him.
"During a call on December 6, 2020, [Isabella] felt that [the respondent] talked and interacted with her in an aggressive manner and was very upset. After that, weekly phone calls have been made only when [she] wants to talk with him. Since then, he has never answered. [The respondent] has not spoken with [Isabella] since December 6, 2020. His last in person visit with her was in March, 2020. "When travel restrictions were lifted, [the respondent] was offered in person visits with [Isabella] at the [department] office. He declined. [She] has said she is scared, ‘afraid of daddy,’ and [does not] want to visit him. She got scared whenever he mentioned [she would] come to live with him. [His] relationship with [her] is strained." (Footnote added.)
The court concluded that, on the basis of its findings, the petitioner had met her burden to prove by clear and convincing evidence the asserted statutory ground for termination, namely, that the respondent failed to achieve a sufficient degree of personal rehabilitation as set forth in § 17a-112 (j) (3) (B) (i). The court then proceeded to the dispositional phase of the proceeding to determine whether termination of parental rights was in Isabella's best interests.
The court first made written findings regarding each of the seven factors set forth in § 17a-112 (k) and considered Isabella's best interests, including her sustained growth, development, well-being, and continuity and stability in her environment. The court made the following findings pertaining to whether termination of the respondent's parental rights was in Isabella's best interests: "[Isabella] has been in the [department's] care since August 29, 2018. ... [The respondent] has been allotted ample time to rehabilitate but has not made minimum effort[s] to change his circumstances for reunification to occur. ... The [d]epartment set reasonable and realistic expectations [and] provided ... final specific steps on September 7, 2018 .... Despite these steps [he was] unwilling or unable to avail [himself] of the services offered ....
General Statutes § 17a-112 (k) provides: "Except in the case where termination of parental rights is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption and Safe Families Act of 1997, as amended from time to time; (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (4) the feelings and emotional ties of the child with respect to the child's parents, any guardian of such child's person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (5) the age of the child; (6) the efforts the parent has made to adjust such parent's circumstances, conduct, or conditions to make it in the best interest of the child to return such child home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions, and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent."
"[Isabella] is placed with her great aunt and uncle .... She receives individual attention and a significant amount of support from her foster parents. ... She loves her foster parents, feels safe living with them, [and] has a strong and healthy attachment and bond with them. She wants to remain with them. ... [Isabella] needs permanency in the sense that she needs to know who the responsible adults in [her] life are and who is consistently caring for her, available for her, and meets her basic social, emotional, and physical needs. ... The foster parents have expressed their desire to adopt her should she become legally free for adoption." On the basis of the foregoing, the court concluded that termination of the respondent's parental rights was in Isabella's best interests. This appeal followed.
I
The respondent first claims that the court improperly determined that he was unable or unwilling to benefit from reunification services. In response, the petitioner argues that the respondent's claim is moot because he challenges only one of the two separate and independent bases on which the court may conclude that the petitioner satisfied the reasonable efforts prong as set forth in § 17a-112 (j) (1). We agree that his claim is moot because there is no practical relief that this court can afford him with respect to this claim.
The legal principles that govern our review are well established. "Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [a] court's subject matter jurisdiction .... Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ... (2) that the interests of the parties be adverse ... (3) that the matter in controversy be capable of being adjudicated by judicial power ... and (4) that the determination of the controversy will result in practical relief to the complainant. ... [I]t is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. ... In determining mootness, the dispositive question is whether a successful appeal would benefit the [appealing party] in any way." (Emphasis omitted; internal quotation marks omitted.) In re Phoenix A. , 202 Conn. App. 827, 838–39, 246 A.3d 1096, cert. denied, 336 Conn. 932, 248 A.3d 1 (2021).
"[ Section] 17a-112 (j) (1) requires the department to prove by clear and convincing evidence that it 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 .... "Because the two clauses are separated by the word unless, this statute plainly is written in the conjunctive. Accordingly, the department 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 department is not required to prove both circumstances. Rather, either showing is sufficient to satisfy this statutory element." (Emphasis omitted; internal quotation marks omitted.) In re Jorden R. , 293 Conn. 539, 552–53, 979 A.2d 469 (2009).
In the present case, the court found that the department had made reasonable efforts to reunify the respondent with Isabella. It, however, did not explicitly find that the respondent was unwilling or unable to benefit from the reunification efforts. The respondent has not challenged the court's explicit determination that the department made reasonable efforts to reunify him with Isabella. Rather, he solely challenges the court's purported implicit finding that he was unwilling or unable to benefit from reunification efforts. We need not determine whether an "unwilling or unable" determination was implicit in the court's decision because we conclude that his claim regarding this implicit finding is moot. The court's determination that the department made reasonable efforts was enough for the court to conclude that the petitioner satisfied § 17a-112 (j) (1). Because the respondent challenges only one of the two separate and independent bases set forth in § 17a-112 (j) (1), there is no practical relief that this court can provide. See, e.g., In re Jorden R. , supra, 293 Conn. at 555, 979 A.2d 469 ; In re Miracle C. , 201 Conn. App. 598, 605, 243 A.3d 347 (2020). II
The respondent next claims that the court improperly concluded, in the adjudicatory phase, that he failed to achieve the requisite degree of personal rehabilitation required by § 17a-112 (j) (3) (B) (i). We disagree.
The following legal principles are relevant to the respondent's claim. "A hearing on a termination of parental rights petition consists of two phases, adjudication and disposition. ... In the adjudicatory phase, the court must determine whether the [petitioner] has proven, by clear and convincing evidence, a proper ground for termination of parental rights. ...
"Failure of a parent to achieve sufficient personal rehabilitation is one of six statutory grounds on which a court may terminate parental rights pursuant to § 17a-112. ... That ground exists when a parent of a child whom the court has found to be neglected fails to achieve such a degree of rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, the parent could assume a responsible position in the life of that child. ...
"Personal rehabilitation as used in [ § 17a-112 (j) (3) (B) ] refers to the restoration of a parent to his or her former constructive and useful role as a parent. ... The statute does not require [a parent] to prove precisely when [he] will be able to assume a responsible position in [his] child's life. Nor does it require [him] to prove that [he] will be able to assume full responsibility for [his] child, unaided by available support systems. ... Rather, [ § 17a-112 ] requires the trial court to analyze the [parent's] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time. ... [The statute] requires the court to find, by clear and convincing evidence, that the level of rehabilitation [he] has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date [he] can assume a responsible position in [his] child's life. ... [I]n assessing rehabilitation, the critical issue is not whether the parent has improved [his] ability to manage [his] own life, but rather whether [he] has gained the ability to care for the particular needs of the child at issue. ...
"A conclusion of failure to rehabilitate is drawn from both the trial court's factual findings and from its weighing of the facts in assessing whether those findings satisfy the failure to rehabilitate ground set forth in § 17a-112 (j) (3) (B). Accordingly ... the appropriate standard of review is one of evidentiary sufficiency, that 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." (Citations omitted; internal quotation marks omitted.) In re Leilah W. , 166 Conn. App. 48, 66–68, 141 A.3d 1000 (2016).
The respondent challenges neither the court's determination that Isabella was found to be neglected in a prior proceeding nor the other factual findings of the court. Rather, the respondent claims that the cumulative effect of the evidence was insufficient to satisfy the failure to rehabilitate ground set forth in § 17a-112 (j) (3) (B). We disagree.
The court found that the respondent had a history of depression and bipolar disorder, a criminal record related to marijuana and cocaine abuse, and multiple past protective orders against him protecting Theresa and Isabella due to instances of intimate partner violence. The court also determined that the respondent had failed to comply with important specific steps to address these mental and behavioral concerns. See In re Amias I. , 343 Conn. 816, 822 n.6, 276 A.3d 955 (2022) ("[s]pecific steps provide notice and guidance to a parent as to what should be done to facilitate reunification and prevent termination of rights" (internal quotation marks omitted)).
Specifically, the court found that the respondent failed to submit to a substance abuse screen, update the department regarding his household makeup, and engage in the parenting of Isabella. He further failed to follow up with counseling appointments and expressed an unwillingness to engage in such services. Instead, he continued to exhibit aggressive and hostile behaviors toward department social workers. This inappropriate behavior occurred during visits with Isabella and she reported that she was afraid of him. The court also found that, although the respondent attended some visits with Isabella, he has refused to participate in in person visits with her since March, 2020. In addition, he was offered weekly telephone calls but often would not answer when Isabella called and he has not spoken with her at all since December 6, 2020.
On appeal, the respondent argues that, because he visited Isabella on certain occasions, either completed services or is willing to engage in services, and maintains a healthy relationship with his sons, Isabella's half brothers, the court improperly concluded that he failed to rehabilitate. We are not persuaded.
Despite noting the respondent's engagement with some services and occasional visitation prior to March, 2020, the court nonetheless concluded that this engagement was inconsistent and insufficient. See, e.g., In re Ryder M. , 211 Conn. App. 793, 816–17, 274 A.3d 218 (court's determination that respondent failed to rehabilitate was proper notwithstanding some evidence of respondent's progress), cert. denied, 343 Conn. 931, 276 A.3d 433 (2022). Furthermore, the respondent's relationship with his sons does not establish that, considering the age and needs of Isabella, he could, within a reasonable time, assume a responsible position in her life. Accordingly, viewing the evidence in the manner most favorable to sustaining the judgment, the evidence sufficiently supported the court's conclusion that there was clear and convincing evidence that the respondent failed to achieve a sufficient degree of rehabilitation, as set forth in § 17a-112 (j) (3) (B) (i).
III
The respondent's final claim is that the court improperly concluded, in the dispositional phase of the proceeding, that the termination of his parental rights was in Isabella's best interest pursuant to § 17a-112 (j) (2). We disagree.
"During the dispositional phase, the trial court must determine whether termination is in the best interests of the child. ... The best interest determination also must be supported by clear and convincing evidence. ...
"It is axiomatic that a trial court's factual findings are accorded great deference. Accordingly, an appellate tribunal will not disturb a trial court's finding that termination of parental rights is in a child's best interest unless that finding is clearly erroneous. ... A finding is clearly erroneous when either there is no evidence in the record to support it, or the reviewing court is left with the definite and firm conviction that a mistake has been made. ... [E]very reasonable presumption is made in favor of the trial court's ruling. Additionally, in reviewing the court's findings under the dispositional phase of the proceedings, it is appropriate to read the trial court's opinion as a whole, including its findings in the adjudicatory phase.
"In deciding whether termination of parental rights is in the best interest of the child, the [trial] court shall consider and make written findings concerning the seven factors listed in § 17a-112 (k), although these factors serve simply as guidelines to the court and are not statutory prerequisites that need to be proven before termination can be ordered .... We have held ... that the petitioner is not required to prove each of the seven factors by clear and convincing evidence. ...
"In addition to considering the seven factors listed in § 17a-112 (k), [t]he best interests of the child include the child's interests in sustained growth, development, well-being, and continuity and stability of [his or her] environment. ... Furthermore, in the dispositional stage, it is appropriate to consider the importance of permanency in children's lives." (Citations omitted; footnote omitted; internal quotation marks omitted.) In re Elijah G.-R. , 167 Conn. App. 1, 29–31, 142 A.3d 482 (2016). "It is well settled that we will overturn the trial court's decision that the termination of parental rights is in the best interest of the [child] only if the court's findings are clearly erroneous." (Internal quotation marks omitted.) In re Ryder M. , supra, 211 Conn. App. at 817, 274 A.3d 218.
We note that this court has previously declined to extend the evidentiary sufficiency standard of review to the court's consideration of the best interests of the child and our Supreme Court has yet to address this issue. See In re Ja'La L. , 201 Conn. App. 586, 595 n.12, 243 A.3d 358 (2020), cert. denied, 336 Conn. 909, 244 A.3d 148 (2021) ; see also, e.g., In re Phoenix A. , supra, 202 Conn. App. at 851, 246 A.3d 1096.
The court's judgment terminating the respondent's parental rights is well supported by its written findings on each of the factors set forth in § 17a-112 (k) in addition to Isabella's needs, including her need for stability and permanency. The court found that Isabella has been in the department's care since August, 2018, and has been living with her great aunt and uncle for three and one-half years. She has a need for permanency and has developed a strong attachment to her foster parents. She wants to remain with them, and they have expressed a willingness to adopt her should that become an option.
Despite the department providing the respondent with final specific steps to take toward reunification, he failed to make significant progress. Specifically, the respondent did not achieve mental health stability, address his history with domestic violence, and visit Isabella as often as permitted or at all since March, 2020. On the basis of these findings, the court concluded that "he has not demonstrated the ability to stabilize his mental health needs and to provide [Isabella] with a safe, stable, and nurturing home environment." Premised on its findings, the court subsequently concluded that the petitioner demonstrated by clear and convincing evidence that the termination of the respondent's parental rights was in Isabella's best interests.
On appeal, the respondent first argues that termination was not in Isabella's best interests because Isabella's therapist testified that, although Isabella does not currently wish to have contact with the respondent, her therapist believes that Isabella will eventually want to have a relationship with him. Isabella's potential and future desire for a relationship with the respondent, however, does not detract from Isabella's need for permanency and stability, which the court concluded was best served by termination of parental rights. See, e.g., In re Davonta V. , 285 Conn. 483, 494–97, 940 A.2d 733 (2008). Finally, the respondent further argues that he provided Isabella with visitation with her half brothers. This argument fails to demonstrate that, given all of Isabella's needs, including her growth, development, and well-being, the court's finding was clearly erroneous.
The respondent also argues that the court should have considered a permanent transfer of guardianship. The respondent acknowledges that a motion for a permanent transfer of guardianship or an argument for such a disposition was not raised in the trial court. Because this claim was not brought before the trial court, we do not consider it on appeal. See In re Leilah W. , supra, 166 Conn. App. at 59, 141 A.3d 1000 ; see also Practice Book § 60-5.
The judgment is affirmed.
In this opinion the other judges concurred.