In re Destiny R., No. 33842.

Decision Date21 March 2012
Docket NumberNo. 33842.
Citation134 Conn.App. 625,39 A.3d 727
CourtConnecticut Court of Appeals
PartiesIn re DESTINY R.*

OPINION TEXT STARTS HERE

Dana M. Hrelic, with whom were Brendon P. Levesque, and, on the brief, Michael S. Taylor, Hartford, and Michael D. Perez, for the appellant (respondent father).

Susan T. Pearlman, assistant attorney general, with whom was Benjamin Zivyon, assistant attorney general, and, on the brief, George Jepsen, attorney general, for the appellee (petitioner).

Alina Bricklin–Goldstein, for the minor child.

LAVINE, ALVORD and FLYNN, Js.

LAVINE, J.

General Statutes § 17a–112 (j)(3)(B)(i) provides for the termination of parental rights when the child “has been found by the Superior Court ... to have been neglected or uncared for in a prior proceeding ... and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent ... and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child....” The specific steps facilitate, but do not guarantee, the return of the child to the parent. See In re Vincent D., 65 Conn.App. 658, 670, 783 A.2d 534 (2001) (successful completion of expectations not sufficient to defeat claim that parent has not achieved sufficient rehabilitation). Although a parent may have participated in the programs recommended pursuant to the specific steps ordered, a court may properly find that the parent has failed to achieve rehabilitation. See In re Coby C., 107 Conn.App. 395, 406, 945 A.2d 529 (2008) (rejecting claim that substantial compliance with specific steps bars court from terminating parental rights). In other words, a finding of rehabilitation is not based on a mechanistic tabulation of whether a parent has undertaken specific steps ordered. The ultimate issue the court must evaluate is whether the parent has gained the insight and ability to care for his or her child given the age and needs of the child within a reasonable time. See In re Eden F., 250 Conn. 674, 706, 741 A.2d 873, reargument denied, 251 Conn. 924, 742 A.2d 364 (1999).

In this matter, the respondent father appeals from the judgment of the trial court, Hon. William L. Wollenberg, judge trial referee, terminating his parental rights with respect to Destiny R. (child), pursuant to § 17a–112 (j)(3)(B)(i).1 On appeal, the respondent claims that the evidence fails to support the court's finding that he failed to achieve such a degree of rehabilitation as would encourage the belief that, within a reasonable time, he could assume a responsible position in the child's life. Specifically, the respondent claims that the record does not support what he claims to be the three bases of the court's decision, i.e., that he (1) has not complied with the steps to facilitate reunification, (2) remains involved in the criminal justice system and (3) has been reluctant to comply with programs offered. We disagree and therefore affirm the judgment of the trial court.2

“Our standard of review on appeal from a termination of parental rights is whether the challenged findings are clearly erroneous.... The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous....

“On appeal, our function is to determine whether the trial court's conclusion was legally correct and factually supported.... We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached ... nor do we retry the case or pass upon the credibility of the witnesses.... Rather, on review by this court every reasonable presumption is made in favor of the trial court's ruling....

“A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition.... In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights [under § 17a–112 (j) ] exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child.” (Internal quotation marks omitted.) In re Brea B., 75 Conn.App. 466, 469–70, 816 A.2d 707 (2003).

Following a consolidated trial,3 Judge Wollenberg made the following findings regarding the facts and procedural history, which he found by clear and convincing evidence. See In re Davonta V., 285 Conn. 483, 487–88, 940 A.2d 733 (2008). When the child was born on April 26, 2008, a hospital nurse reported to the department of children and families (department) that the mother tested positive for marijuana on that date as well as on March 6, March 27, and April 9, 2008, and for marijuana and cocaine on March 21, 2008. The child's mother admitted that she had smoked marijuana throughout her pregnancy because it helped to increase her appetite and to elevate her depressive feelings. Department personnel took the child into protective custody soon thereafter and placed her with a licensed foster family. Judge Wollenberg granted the motion for order of temporary custody,4 which was sustained by the court, Keller, J., on May 9, 2008. Judge Keller ordered specific steps for the respondent.5

The petitioner, the commissioner of children and families, filed a neglect petition that alleged the following jurisdictional facts: the mother has a history of substance abuse and tested positive for marijuana at the time of the child's birth and the parents have a history of domestic violence. At the hearing, department personnel reported that the respondent and the child's mother had been evicted from their apartment and that they had failed to provide a forwarding address. On July 29, 2008, the court, Dannehy, J., adjudicated the child neglected, committed her to the custody of the petitioner and reaffirmed the specific steps previously ordered for the respondent. See footnote 5 of this opinion.

On December 2, 2008, the respondent and the child's mother were arrested on drug related charges. The respondent was jailed for approximately one month, convicted, and given a suspended sentence and three years of probation.

On January 29, 2009, the petitioner filed a permanency plan to terminate the respondent's parental rights with respect to the child and for adoption, a plan supported by the child's attorney. The respondent did not object to the permanency plan, which was approved following a hearing on March 17, 2009.

The respondent and the child's mother had a second child, LR, on May 8, 2009. At the time, the respondent and the mother were living with the child's maternal grandfather in a one bedroom apartment. The respondent and the child's mother later were able to find an apartment of their own. On May 19, 2009, the petitioner filed a revised permanency plan to reunify the child with her parents, and the child was reunited with them on November 24, 2009.

On December 17, 2009, Judge Dannehy found that cause for the child's commitment no longer existed and ordered six months of protective supervision for her, until June 17, 2010. The court also ordered final steps for the respondent that were in addition to those steps set forth in footnote 5 of this opinion.

The respondent was arrested again on February 25, 2010, and charged with assault in the first degree on the basis of allegations that he had been involved in a serious incident on May 5, 2008. His fingerprints were found on a live bullet found at the scene of the assault. Because he was unable to post bail,6 the respondent was incarcerated at MacDougall–Walker Correctional Institution. Due to the serious injuries the assault victim sustained, the respondent potentially faced a long sentence. Protective supervision for the child was extended until October 17, 2010, at the request of the child's attorney.

On May 14, 2010, the child's mother tested positive for marijuana, cocaine and amphetamines. During an unannounced visit from a department social worker and a Section 8 housing case manager that occurred on June 7, 2010, the mother admitted to having used marijuana and cocaine three times over the past weekend while the child and LR were in the care of their maternal grandmother. On June 11, 2010, department personnel again sought orders of temporary custody for the child due to the mother's substance abuse relapse and placed the child and LR in the foster home where the child had been placed in 2008. On June 16, 2010, Judge Dannehy reviewed the specific steps ordered for the respondent and added a step for individual counseling. The court also granted a motion filed by the child's attorney for psychological evaluations of the parties.

The mother was taken to Amethyst House in New Haven for inpatient substance abuse treatment, but she left without completing the program. The Section 8 case manager closed the mother's file due to her failure to comply with treatment goals. The mother did not tell the department personnel that she had lost her apartment until July 8, 2010. She requested outpatient treatment for substance abuse, but refused to inform department personnel of her whereabouts. The respondent was incarcerated awaiting trial on the assault and robbery charges at the time the mother relapsed and lost their apartment.

On September 1, 2010, the respondent and the child's mother agreed to the order of temporary custody and pleaded nolo contendere in response to the allegation that the child was neglected. The child was recommitted to the custody of the petitioner. The court, Frazzini, J., ordered additional steps for the...

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