Drew R., In re

Citation47 Conn.App. 124,702 A.2d 647
Decision Date11 November 1997
Docket NumberNo. 16821,16821
CourtAppellate Court of Connecticut
PartiesIn re DREW R. *

Bruce B. McIntyre, New London, for appellant (respondent father).

Michael McKenna, Asst. Atty. Gen., with whom were Linda Pearce Prestley, Asst. Atty. Gen., and on the brief, Richard Blumenthal, Atty. Gen., and Susan T. Pearlman, Asst. Atty., for appellee (petitioner).

Before LAVERY, LANDAU and DUPONT, JJ.

LAVERY, Judge.

This is an appeal by the respondent father from the judgment of the trial court terminating his parental rights with respect to his son. The respondent claims that the trial court (1) was too restrictive in its consideration of the evidence of interest, concern or responsibility for the welfare of the child, (2) was incorrect when it found that reasonable efforts toward reunification had been fostered by the department of children and families (DCF), and (3) incorrectly shifted the burden of permanency planning from DCF to the father. We affirm the judgment of the trial court.

The trial court found the following facts. The child was born on April 10, 1993, and was voluntarily placed by his mother in the care of DCF on April 14, 1993. The child has remained in DCF's care in foster homes since that date. The respondent and the child's mother were living in Detroit, Michigan, at the time of the child's conception. In February, 1993, the respondent, aware that the mother of this child was pregnant, left for California and the mother returned to Connecticut where the child was born. The respondent knew that the mother did not want the child. The respondent, although aware that the child was in foster care, did not contact DCF until June, 1994. The respondent had visited the child twice in April, 1994, and April, 1996. He was in Connecticut on at least one other occasion in that time period and failed to visit the child. He had sporadic contact with the foster parents and with DCF. He sent a Christmas present in 1995, but did not acknowledge birthdays or any other holidays. In June, 1994, the respondent sent a letter to DCF stating that he was interested in obtaining custody of his son. DCF requested an interstate study from California. In November, 1994, DCF received a positive response about the respondent from California and planned to transfer custody to him prior to Christmas, 1994. The respondent asked for a delay in assuming custody. He then relocated, which necessitated another study. In June, 1995, the respondent told DCF he was not in a position to care for his son and requested that an unrelated third party be considered for custody. He also informed DCF that he had moved again. The study of the third party was never completed because the third party failed to cooperate. In November, 1995, the respondent withdrew his request for the child's placement with the unrelated third party.

In October, 1995, DCF brought a termination petition against both parents. The mother consented to termination and, after a hearing on December 8, 1995, the trial court terminated the mother's parental rights. The trial as to the respondent was held on three separate days in April and May, 1996. The respondent was present for two of the three days and was excused by the court for the third day. The trial court found that the state by clear and convincing evidence proved that the respondent abandoned the child in accordance with the standard set forth in General Statutes (Rev. to 1995) § 17a-112(b)(1), as amended by Public Acts 1995, No. 95-238, § 3, 1 and that it was in the best interest of the child that the respondent's parental rights be terminated under the standards set forth in General Statutes (Rev. to 1995) § 17a-112(d), as amended by Public Acts 1995, No. 95-238, § 3. 2

The hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. See Practice Book § 1043.1 et seq. In the adjudicatory phase, the trial court determines whether the allegations of the statutory ground for termination of parental rights 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 the termination of parental rights is in the best interests of the child. In re Maximina V., 44 Conn.App. 80, 82-83, 686 A.2d 1005 (1997).

"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.... [W]e will disturb the findings of the trial court in both the adjudication and disposition phases only if they are clearly erroneous." (Citations omitted; internal quotation marks omitted.) Id., at 83-84, 686 A.2d 1005.

I

The respondent's first claim is that under the facts of this case the trial court was too restrictive in its consideration of the indicia of interest, concern or responsibility for the welfare of the child. The statutory ground found by the trial court is abandonment as set forth in § 17a-112(b)(1). See footnote 1. That statute provides that the trial court may grant a petition to terminate parental rights if it finds, upon clear and convincing evidence, that for not less than one year "[t]he child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child...." General Statutes (Rev. to 1995) § 17a-112(b)(1), as amended by Public Acts 1995, No. 95-238, § 3.

"Abandonment focuses on the parent's conduct. It is a question of fact for the trial court which has the parties before it and is in the best position to analyze all of the factors which go into the ultimate conclusion that [the statutory standard of abandonment] has been satisfied. In re Adoption of Webb, 14 Wash.App. 651, 657, 544 P.2d 130 (1975). In re Juvenile Appeal (Docket No. 9489), 183 Conn. 11, 14, 438 A.2d 801 (1981)." (Internal quotation marks omitted.) In re Rayna M., 13 Conn.App. 23, 36, 534 A.2d 897 (1987).

"The commonly understood general obligations of parenthood entail these minimum attributes: (1) express love and affection for the child; (2) express personal concern over the health, education and general well-being of the child; (3) the duty to supply the necessary food, clothing, and medical care; (4) the duty to provide an adequate domicile; and (5) the duty to furnish social and religious guidance....

"It is not lack of interest alone which is the criterion in determining abandonment. Abandonment under General Statutes [§ 17a-112(b)(1) ] requires failure to maintain interest, concern or responsibility as to the welfare of the child. Attempts to achieve contact with a child, telephone calls, the sending of cards and gifts, and financial support are indicia of interest, concern or responsibility for the welfare of a child.... Where a parent fails to visit a child, fails to display any love or affection for the child, has no personal interaction with the child, and no concern for the child's welfare, statutory abandonment has occurred.

"General Statutes [§ 17a-112(b)(1) ] does not contemplate a sporadic showing of the indicia of interest, concern or responsibility for the welfare of a child. A parent must maintain a reasonable degree of interest in the welfare of his or her child. Maintain implies a continuing, reasonable degree of concern." (Citations omitted; internal quotation marks omitted.) Id., at 37-38, 534 A.2d 897.

The trial court found abandonment by clear and convincing evidence in that the respondent's contact with his son was random at best and that he had not contributed to the child's support though evidence indicated he was able to contribute a small amount. The trial court further found that the respondent acknowledged birthdays and holidays sporadically and did not often telephone or write inquiring about his son. The respondent failed to visit his son when he was in Connecticut on one occasion. The court further found that the respondent was not involved with his son as of October, 1995, when the petition was filed.

The respondent argues that the criteria set forth are too narrow and do not take into consideration that he resides in California, submitted to studies, requested custody, and had telephone contact with DCF. He claims that this showed that abandonment had not taken place. The minimum interest set forth by the respondent does not come close to overcoming the proof of abandonment presented by the petitioner and found by the trial court. Upon our review of the evidence in the record, we conclude that the trial court's findings are not clearly erroneous.

II

The respondent's second claim is that the trial court incorrectly found that DCF made reasonable efforts to reunify him with his son. Section 17a-112(b) provides in pertinent part: "The superior court upon hearing and notice, as provided in sections 45a-716 and 45a-717, may grant such petition if it finds that the department of children and families has made reasonable efforts to reunify the child with the parent and, upon clear and convincing evidence, that the...

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