In re Antony B.

• Decision Date: 17 August 1999
• Citation: 735 A.2d 893
• Parties: (Conn.App. 1999) IN RE ANTONY B. ET AL. <A HREF="#fr1-*" name="fn1-*">* (AC 18639)
• Court: Connecticut Court of Appeals

735 A.2d 893 (Conn.App. 1999)

IN RE ANTONY B. ET AL.^*

(AC 18639)

Connecticut Court of Appeals

Argued February 16

August 17, 1999

David Brian Carr, for the appellant (respondent mother).

Donald R. Green, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Benjamin Zivyon and Susan T. Pearlman, assistant attorneys general, for the appellee (petitioner).

Landau, Schaller and Daly, Js.

Schaller, J.

OPINION

The respondent mother,¹ appeals from the judgments of the trial court terminating her parental rights in her twin sons, A and T.² The respondent claims that the trial court improperly (1) held that the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., does not apply to termination of parental rights proceedings, (2) found by clear and convincing evidence that the department had made reasonable efforts at reunification and (3) found that it was in the children's best interests to terminate the respondent mother's rights instead of transferring guardianship. We affirm the judgments of the trial court.

The following facts are necessary to the resolution of this appeal. The respondent has suffered from psychiatric disorders since the 1980s when she was diagnosed with schizo-affective disorder. The respondent was placed on medication that, when taken as directed, improved her condition dramatically. While on the medication, the respondent was able to carry on a nearly normal lifestyle. The respondent received a bachelor of science degree at the University of Connecticut and was just two months short of receiving her nursing degree from St. Francis Hospital when she stopped taking her medication in 1991. After she stopped taking her medication, her condition deteriorated and she found herself living in shelters.

The respondent gave birth to A and T prematurely at twenty-seven weeks of gestation on December 30, 1994. During the course of her pregnancy with the twins, she did not seek prenatal care and was living with the twins' father. She moved out prior to the twins' birth, however, because the father became physically abusive toward her. The respondent moved into a room in a homeless shelter that was frequently littered with empty alcoholic beverage bottles. When the respondent gave birth to the twins, she had to be placed in four point restraints and be sedated because she was abusive and actively psychotic. Upon her discharge, the respondent was resistant to treatment and failed to take part in the services offered by the department to allow her to take the twins home with her when they were well enough to be discharged. She appeared to be apathetic towards the twins' condition and care.

The respondent, even after the twins' birth, refused offers of assistance and failed to take her medication as prescribed. The commissioner of children and families (commissioner) sought and was granted an order of temporary custody of the twins on February 10, 1995. The commissioner placed A and T with the respondent's brother and sister-in-law in Maine. The children are currently living with their aunt and uncle and have adjusted to their surroundings.

The respondent was admitted to Cedarcrest Regional Hospital, where she remained for a period of one month. She was diagnosed as having a schizo-affective disorder and that diagnosis has not changed over time. The respondent saw Elizabeth Villotas, a psychotherapist, from December, 1995, through May, 1997. Villotas stated that the respondent has a "psychotic illness of sufficient severity to require regular treatment and medication. She has delusional ideas and trouble keeping organized enough for her own care and is extremely unlikely to be able to do so for others, especially young children." Villotas further testified that the respondent was probably in a violent relationship with the father and that there were concerns of domestic violence. The respondent was confused, sometimes admitting to the violence and, other times, denying that any violence occurred.

In addition to the concerns about the respondent's volatile relationship with the father, Villotas suspected that the respondent was abusing alcohol. There were times when Villotas smelled alcohol on the respondent's breath. The consumption of alcoholic beverages while taking her prescribed medications could cause serious sedation and further disorganization in the respondent's life.

When the twins were six months old, the respondent was given strictly supervised visitation rights. At no time did the respondent participate in any medical appointments for the twins nor did she inquire as to their well-being. During her visits, the respondent had episodes where her eyes would roll back and she would appear to be completely unaware of her surroundings. When the respondent had these episodes, Kerry Bell, the social worker assigned to the case, would have to call out the respondent's name to get her to become alert again. The respondent was holding the twins during one of these episodes and dropped one of them on the floor. The commissioner suspended visitation rights until the respondent obtained a note from a physician stating that she was able to continue with visitation.

In October, 1996, the commissioner transferred the respondent's case to Daniel Huntley, a social worker. Huntley remained on this case and worked with the respondent for approximately eight months. Between October, 1996, and January, 1997, the respondent was pregnant with her third child, C. Catherine Foss, a home health nurse, assisted her with her pregnancy. Foss noticed evidence of domestic abuse during her visits. Additionally, a nurse at St. Francis Hospital noticed bruises on the respondent's chin, eyes and forearm. When questioned, the respondent admitted that the bruises were from incidents of domestic violence.

The attorney for the twins filed a petition to terminate parental rights on February 9, 1997, which the commissioner joined on March 14, 1997. The commissioner referred the respondent and the father to Catholic Family Services (agency), and in April, 1997, they began classes at the agency's reunification program under the supervision of Isabel Perez. Perez described the reunification program as follows: "Parents come. They have opportunities to do different activities. It could be feeding -- of course we have to take into consideration the age of the child. It could be feeding, holding the babies, changing them, playing with them. Using different games." Perez stated that during the course of the program, the respondent's interaction with the children was "limited to the welcome greetings. There was no... parent child interaction during [the visit]." Furthermore, Perez noticed no improvement in the respondent's interaction over the course of two months. In fact, there never was a time that Perez felt that she could recommend to the department that the respondent should be given unsupervised visits.

Additionally, the respondent disclosed to Perez that she was suffering from instances of self-destructive behavior. Based on observations of the respondent, the decision was made by the agency to discontinue the reunification course with the respondent because "it was not the right program for [her]." The fact that the respondent suffered from a mental illness did not affect the agency's decision to terminate her involvement with the reunification program.

The trial court appointed Robert Meier, a psychologist, to evaluate the respondent's mental condition. In a report dated May 26, 1997, Meier stated: "[P]ersonality evaluation results present a profile that is consistent with individuals who have serious emotional problems. Those with this pattern generally lack self-confidence and self-esteem. They tend to be isolated from others, are distrustful, and are seriously lacking in social skills. Their lifestyles are often characterized as schizoid. Thinking is often autistic, fragmented and tangential. There is difficulty concentrating and feelings that things that are not real may be present." Meier stated that when the respondent was on her medication, her condition was markedly improved, but that treatment was not perfect, and the respondent faced episodes where she lost concentration. According to Meier, such episodes might affect her ability to raise her children.

In June, 1997, the commissioner transferred the case to social worker Clordean Davis Mendes. During Mendes' involvement with the respondent, obtaining stable, suitable housing remained a problem for the respondent. Furthermore, the respondent was still not faithfully taking her medication. The respondent also remained in the abusive relationship with the father.

During the course of the department's involvement with the respondent, she has been offered psychiatric treatment, substance abuse counseling, housing assistance and assistance with getting out of her abusive relationship with the father. She refused most of the services offered, with the exception of the Catholic Family Services program. The respondent rejected the offers of department personnel to pick her up and drive her to specific counseling sessions. Additional facts will be set forth where necessary.

I.

The respondent first claims that the trial court improperly held that the ADA does not apply and does not provide a defense to termination of parental rights proceedings.³ We disagree.

Whether the ADA applies to termination of parental rights proceedings appears to be an issue of first impression⁴ before either this court or our Supreme Court and presents a question of law, affording us plenary review. General Accident Ins. Co. of America v. Powers, Bolles, Houlihan & Hartline, Inc., 38 Conn. App. 290, 298, 660 A.2d 369, cert. denied, 235 Conn. 904, 665 A.2d 901 (1995).

The ADA provides: "[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or denied the benefits of the...