In re Davonta V., 26556.

• Decision Date: 10 October 2006
• Docket Number: No. 26556.,26556.
• Citation: 907 A.2d 126,98 Conn.App. 42
• Court: Connecticut Court of Appeals
• Parties: In re DAVONTA V.<SMALL><SUP>*</SUP></SMALL>

Page 126

907 A.2d 126

98 Conn.App. 42

In re DAVONTA V.^*

No. 26556.

Appellate Court of Connecticut.

Argued June 1, 2006.

Decided October 10, 2006.

David B. Rozwaski, Milford, for the appellant (respondent mother).

Angela M. Offredi, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

Matthew E. Naclerio, New Haven, for the minor child.

SCHALLER, LAVINE and PELLEGRINO, Js.

LAVINE, J.

After determining whether one of the statutory grounds for termination of parental rights under General Statutes § 17a-112 (j) exists by clear and convincing evidence, a judge is required to evaluate whether severing the legal tie between parent and child is in the child's best interest. That task is among the most sensitive and difficult with which a judge is charged. Although a judge is guided by legal principles, the ultimate decision to terminate parental rights is intensely human. It is the judge in the courtroom who looks the witnesses in the eye, interprets their body language, listens to the inflections in their voices and otherwise assesses the subtleties that are not conveyed in the cold transcript. Having engaged in that process, the trial court in this case concluded that it was in the best interest of the minor child to terminate the parental rights of the respondent mother.¹ The respondent now appeals from that judgment. It is the respondent's sole claim on appeal that the court improperly concluded that the termination of her parental rights was in the best interest of the child. We affirm the judgment of the trial court.

In its thoughtful and comprehensive memorandum of decision filed March 30, 2005, the court recited the following facts and procedural history. The child, D, born April 14, 1992, was the subject of a neglect petition filed March 9, 1999, by the petitioner, the commissioner of children and families (commissioner), alleging educational, medical and physical neglect.² After finding the child to be neglected, the court entered a disposition of protective supervision that allowed the respondent to have custody of the child. On August 24, 1999, protective supervision was terminated when the commissioner learned that the respondent had entered the witness protection program and relocated to North Carolina with the child. The respondent returned to Connecticut in November, 1999, and shortly thereafter the commissioner received reports of neglect concerning the child. On May 11, 2000, a neglect petition was again filed by the commissioner. An order of temporary custody was granted, stemming from the neglect petition filed in May, 2000. On October 24, 2000, the child was adjudicated neglected and committed to the care of the commissioner and placed in foster care. The commitment subsequently was maintained on August 23, 2001, and then again on September 23, 2002.

On December 12, 2002, the commissioner filed a petition for the termination of the respondent's parental rights. The petition alleged that the child was being denied proper care and attention and that the respondent had failed to achieve personal rehabilitation after the court previously had adjudicated the child neglected. On November 16, 2004, the hearing on the termination of parental rights began. Testimony was heard on a number of days over a period of several months. The court heard testimony from a child psychologist, social workers, the foster care coordinator, the child's maternal aunt and the respondent.³

On March 30, 2005, the court filed its memorandum of decision in which it found by clear and convincing evidence that the department of children and families (department) had made reasonable efforts to reunify the respondent with her child pursuant to § 17a-112 (j). The court further found by clear and convincing evidence that the respondent had "not achieved a reasonable degree of rehabilitation, and there is no evidence of conduct prior to or subsequent to the date of the filing of the [petition] which would encourage the belief that within a reasonable period of time, considering the age and needs of [the child], that [the respondent] could assume a responsible position in his life" pursuant to § 17a-112 (j)(3)(B).

In the dispositional phase of the proceedings, the court considered and made the requisite factual findings pursuant to § 17a-112 (k) and determined that terminating the respondent's parental rights would be in the child's best interest. The court concluded that "the evidence is clear and convincing that the best interest of [the child] is served by termination of [the respondent's] parental rights ...." The respondent appealed. Additional facts will be set forth as necessary.

The respondent claims that the court improperly found, in the dispositional phase of the proceeding, that it would be in the best interest of the child to terminate the respondent's parental rights. Specifically, the respondent contends that because the child has sufficient ties to his biological family and there is not currently any guarantee of adoption, the termination was not warranted. We disagree.

"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).

In the dispositional phase of a termination of parental rights hearing, "the emphasis appropriately shifts from the conduct of the parent to the best interest of the child." In re Romance M., 229 Conn. 345, 356-57, 641 A.2d 378 (1994). During this dispositional phase, "the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent's parental rights is not in the best interest of the child. In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in § 17a-112 [k]."⁴ In re Tabitha P., 39 Conn.App. 353, 361-62, 664 A.2d 1168 (1995). We note that those "seven factors serve simply as guidelines for the court and are not statutory prerequisites that need to be proven before termination can be ordered.... There is no requirement that each factor be proven by clear and convincing evidence." (Citation omitted.) In re Victoria B., 79 Conn.App. 245, 261, 829 A.2d 855 (2003).

In the dispositional phase of the proceedings, the court found that the seven factors listed in § 17a-112 (k) weighed in favor of terminating the respondent's parental rights, and the court thoroughly documented its conclusions regarding those factors. Those findings, which need not be repeated here, are fully supported by the record. Moreover, the court found by clear and convincing evidence that it was in the child's best interest to terminate the respondent's parental rights. The respondent does not challenge the accuracy of any of the facts on which the court relied in its ultimate finding that the factors enumerated in § 17a-112 (k) warranted termination. She also does not claim that the court excluded any evidence to the contrary. The respondent's argument is essentially a plea in avoidance. She contends that the court's finding that it is in the child's best interest to terminate her parental rights was clearly erroneous because the court failed to accord greater weight to evidence of the child's ties to his biological family and the absence of any guarantee of adoption.⁵

Although we acknowledge the respondent's desire to maintain the child's ties to his biological family members, we cannot reweigh the evidence or find facts. In re Ashley E., 62 Conn.App. 307, 316, 771 A.2d 160, cert. denied, 256 Conn. 910, 772 A.2d 601 (2001). Deciding whether termination is in the best interest of the child is a difficult task that requires the court to weigh many different and sometimes competing interests. "The desire and right of a parent to maintain a familial relationship with a child cannot be separated from the desire and best interest of a child either to maintain or to abandon that relationship, or the interest of the state in safeguarding the welfare of children. These legitimate interests of parent, child and state require a balancing of the factors involved in those interests.... In every case involving parental rights, a struggle exists between parents and the state to determine what is in the child's best interest, the child being the focus of the struggle." (Citation omitted.) In re Shaquanna M., 61 Conn.App. 592, 598-99, 767 A.2d 155 (2001). The court's analysis of the child's best interest properly focused on the respondent's inability to provide a stable home and the child's...