Michael M., In re, 10577

• Citation: 29 Conn.App. 112,614 A.2d 832
• Decision Date: 15 September 1992
• Docket Number: No. 10577,10577
• Court: Appellate Court of Connecticut
• Parties: In re Michael M. et al. *

Page 832

614 A.2d 832

29 Conn.App. 112

In re Michael M. et al. ^*

No. 10577.

Appellate Court of Connecticut.

Argued June 8, 1992.

Decided Sept. 15, 1992.

David B. Rozwaski, Hartford, for appellant (respondent).

Mary-Anne Ziewacz Mulholland, Asst. Atty. Gen., with whom, on the brief, was Richard Blumenthal, Atty. Gen., for appellee (petitioner).

Before FOTI, LANDAU and FREDERICK A. FREEDMAN, JJ.

LANDAU, Judge.

This is an appeal by the respondent, Gwendolyn M., from the judgment of the trial court terminating her parental rights with respect to her children, Michael and Mamie M., pursuant to General Statutes (Rev. to 1989) § 17-43a(b)(1), (2) and (4) (now § 17a-112). ¹ The trial court found that the allegations in the petitions for termination had been proven by clear and convincing evidence and that it was in the best interest of each child that the parental rights of the respondent be terminated. ²

On appeal, the respondent claims that (1) the petitioner did not properly plead abandonment on the termination petitions, and, even if abandonment was pleaded properly, the petitioner failed to provide clear and convincing evidence that she had abandoned her children within the meaning of § 17-43a(b)(1); (2) the trial court improperly determined that she failed to rehabilitate herself within the meaning of § 17-43a(b)(2); and (3) the trial court improperly determined that there was no ongoing parent-child relationship between the respondent and her children within the meaning of § 17-43a(b)(4). We affirm the judgment of the trial court.

The following facts are pertinent to our resolution of this appeal. Michael M. was born on December 25, 1986, and Mamie M. was born on May 30, 1988. Both children resided with the respondent, their biological mother, until the spring of 1989. At that time, the department of children and youth services (DCYS), acting on the confirmation of a number of referrals received from various sources over the preceding five months, filed neglect petitions for both children. On June 15, 1989, both children were found, by default, ³ to have been medically and physically neglected and were committed to the custody of DCYS for an initial period of eighteen months, pursuant to General Statutes § 46b-129.

Initially, both children were placed with the same foster parent, but Michael was removed from the home in September, 1989, because there was insufficient room there to accommodate him. Since being removed, Michael has resided with another foster parent.

During the period of the children's commitment to DCYS, the respondent maintained only sporadic contact with DCYS and her children. She did not regularly telephone her children, she never sent them cards or gifts, and never provided the foster parents with a reliable telephone number to contact her. The respondent visited the children two or three times during the month of August, 1989. She visited both children around Thanksgiving of that same year, spent one day with Mamie and one weekend with Michael in January, 1990, and arranged a visit for Mamie's birthday in May, 1990, but never appeared and did not call to explain her absence until some time later. The respondent had never been denied a requested visit and never stated that transportation problems were reasons for her failure to visit her children regularly.

The respondent contacted DCYS five times from the time the children were committed in June, 1989, until June, 1990, but never provided the children's caseworker with a reliable way to contact her. The respondent's first call to DCYS, in December, 1989, was to schedule an office visit with the children. Although an office visit was arranged, the respondent neither arrived at the scheduled time nor called to explain why she did not attend. She next contacted DCYS in January, 1990, to obtain the children's addresses, which she had misplaced, and then in February, 1990, to find out the date of her February review. Although she was given the date of the review, she failed to attend. She contacted DCYS again in May, 1990, to request assistance in finding a job and an apartment. Her last contact with DCYS was in June, 1990, when she called to inform the caseworker that she had been convicted of assault and was incarcerated at the Connecticut Correctional Institution in Niantic for a period of five years to be suspended after three years, and to request prison visits with her children.

DCYS denied the respondent's request for visitation because of the impending filing of the termination petitions and because of her failure to contact her children for the five months preceding her incarceration. On September 14, 1990, DCYS filed petitions for termination of the respondent's parental rights for both Michael and Mamie, and the trial court ordered psychological evaluations of the respondent, Michael, Mamie and their respective foster parents. On October 4, 1990, the trial court ordered monthly prison visits in Niantic. ⁴

David Mantell, the court-appointed psychologist, attempted to evaluate the parties on three occasions and filed three reports with the court. The only party who appeared for the first evaluation was Michael. All of the parties appeared for the second and third evaluations. Mantell found the respondent to be irrational and angry, with a "substantial history of psychosocial adjustment problems, antisocial behavior and a difficult personality ... substantial history of substance abuse, violent behavior, and arrests." He concluded that her behavior was ultimately self-defeating. He found that her prognosis for rehabilitation was poor given her reluctance to admit that her substance abuse contributed to her children's commitment. Mantell was unable to make a clearer prediction as to the respondent's capacity to rehabilitate herself because of her reluctance to participate in the evaluations. Mantell further found that Mamie's foster mother clearly was her psychological parent, that Mamie had no ongoing relationship with the respondent, that Michael's relationship with his foster mother was stronger than his relationship with the respondent and that he appeared to have multiple psychological parents. On the basis of those findings, Mantell recommended against continued visitation unless there was "a clear-cut plan to reunite the mother and the children along with a high level of probability that this can be accomplished within the reasonably near future."

The respondent was present at the termination hearing, hummed loudly throughout most of the testimony presented by the petitioner and failed to testify on her own behalf. The only evidence she offered was the caseworker's testimony relating to an injury to Mamie's eye the respondent had observed during the last prison visit. ⁵

In its memorandum of decision, the trial court found that the petition pertaining to each child alleged that the reasons for the termination of the respondent's parental rights had existed for more than one year, and that the respondent's parental rights should be terminated for three of the four grounds specified in § 17-43a(b), namely: (1) each child had been abandoned by the respondent, (2) in a prior proceeding, each child had been found to have been neglected or uncared for, and 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 age and needs of each child, she could assume a responsible position in each child's life, and (3) there was no ongoing parent-child relationship. The respondent appeals from this judgment terminating her parental rights as to her two children, Michael and Mamie.

"Our statutes define the termination of parental rights as 'the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his parent....' General Statutes § 45-61b(g). It is a most serious and sensitive realm of judicial action. Anonymous v. Norton, 168 Conn. 421, 430, 362 A.2d 532, cert. denied, 423 U.S. 935, 96 S.Ct. 294, 46 L.Ed.2d 268 (1975).... To justify the termination of parental rights in the absence of consent, one or more of the grounds set forth in General Statutes § 17-43a must be proven by clear and convincing evidence. ⁶ In re Juvenile Appeal (84-3), [1 Conn.App. 463, 467, 473 A.2d 795, cert. denied, 193 Conn. 802, 474 A.2d 1259 (1984) ]; see In re Juvenile Appeal (83-CD), 189 Conn. 276, 296, 455 A.2d 1313 (1983)." In re Juvenile Appeal (84-6), 2 Conn.App. 705, 707-708, 483 A.2d 1101 (1984), cert. denied, 195 Conn. 801, 487 A.2d 564 (1985).

"Section 17-43a carefully sets out ... four situations that, in the judgment of the legislature, constitute 'countervailing interests' sufficiently powerful to justify the termination of parental rights in the absence of consent. [DCYS], in petitioning to terminate those rights, must allege and prove, by clear and convincing evidence, one or more of the statutory grounds. In contrast to custody proceedings, in which the best interests of the child are always the paramount consideration and, in fact, usually dictate the outcome, in termination proceedings the statutory criteria must be met before termination can be accomplished and adoption proceedings can begin. No all-encompassing 'best interests' standard vitiates the requirement of compliance with the statutory criteria." (Internal quotation marks omitted.) In re Luis C., 210 Conn. 157, 165, 554 A.2d 722 (1989), quoting In re Juvenile Appeal (Anonymous), 177 Conn. 648, 671-72, 420 A.2d 875 (1979).

I

The respondent first mounts a two-part challenge to the trial court's finding that she abandoned her two children. The respondent initially claims that the petitioner did not properly plead abandonment in the petition for termination. In the alternative, she claims that, even if the petitioner did properly plead abandonment, the petitioner failed to provide clear and...