In re Avia M., AC 41709

Citation188 Conn.App. 736,205 A.3d 764
Decision Date22 March 2019
Docket NumberAC 41709
CourtAppellate Court of Connecticut
Parties IN RE AVIA M.

Agnieszka G., self-represented, the appellant (respondent mother).

Stephen G. Vitelli, assistant attorney general, with whom, on the brief, were George Jepsen, former attorney general, Benjamin Zivyon, assistant attorney general, and Hannah Kalichman, certified legal intern, for the appellee (petitioner).

Alvord, Elgo and Norcott, Js.

PER CURIAM.

The respondent mother appeals from the judgment of the trial court terminating her parental rights with respect to her daughter, Avia M. (child).1 On appeal, the respondent claims that the trial court improperly concluded that the petitioner, the Commissioner of Children and Families, proved by clear and convincing evidence that (1) the Department of Children and Families made reasonable efforts to reunify her, (2) she was unable or unwilling to achieve the requisite degree of personal rehabilitation, and (3) it was in the child's best interest to terminate her parental rights.2 We affirm the judgment of the trial court.

The record discloses that the child first entered the petitioner's care on April 6, 2016. The child was reunified with the respondent, on July 28, 2016, under an order of protective supervision and again was removed from the respondent's care on November 28, 2016. The child has been in the care and custody of the petitioner since November 28, 2016.

On May 2, 2017, the petitioner filed a petition to terminate the respondent's parental rights, alleging, pursuant to General Statutes § 17a-112 (j) (3) (B) (i), that the child previously was adjudicated neglected and that the respondent had failed to rehabilitate such that she could assume a responsible position in the child's life in a reasonable time. The petitioner further alleged that termination of the respondent's parental rights was in the child's best interest.

To prevail in a nonconsensual termination of parental rights case, the petitioner must prove by clear and convincing evidence that one of the statutory grounds for termination exists. General Statutes § 17a-112 (j) (3). If the trial court determines that failure to rehabilitate has been proven by the appropriate standard, then it must determine whether termination of parental rights is in the best interest of the child. General Statutes § 17a-112 (j) (2). Our standard of review on appeal is twofold. In re Shane M. , 318 Conn. 569, 587–88, 122 A.3d 1247 (2015). First, the court's ultimate conclusion of whether a parent has failed to rehabilitate is "[reviewed under an evidentiary sufficiency standard], that is, whether the trial court could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify its [ultimate conclusion].... When applying this standard, we construe the evidence in a manner most favorable to sustaining the judgment of the trial court." (Internal quotation marks omitted.) Id. Second, the standard of review for the court's determination of the best interest of the child is clearly erroneous. In re Brayden E.-H. , 309 Conn. 642, 657, 72 A.3d 1083 (2013).

Our examination of the record and our consideration of the arguments of the parties persuades us that the judgment of the trial court should be affirmed. In a thoughtful and comprehensive memorandum of decision, the trial court analyzed the law in a manner consistent with our statutes and case precedents. Because that memorandum addresses the arguments raised in this appeal, we adopt the trial court's well reasoned decision as a statement of the applicable law on the issues. In re Avia M. , Superior Court, judicial district of New Britain, Juvenile Matters, Docket No. H14-CP16-011696-A, 2018 WL 2069033 (April 3, 2018) (reprinted at 188 Conn. App. at 740, 205 A.3d 764 ). It would serve no useful purpose for us to repeat the discussion contained therein. See In re Michael R. , 49 Conn. App. 510, 512, 714 A.2d 1279, cert. denied, 247 Conn. 919, 722 A.2d 807 (1998).

The judgment is affirmed.

Attachment

APPENDIX

IN RE AVIA M.*

Memorandum filed April 3, 2018

Superior Court, Juvenile Matters at New Britain

File No. H14-CP16-011696-A

Proceedings

Memorandum of decision after completed trial to court. Judgment for petitioner .

Christopher N. Oakley , for the respondent mother.

Amy Collins , assistant attorney general, for the petitioner.

Lizabeth Mindera , for the minor child.

Opinion

HON. STEPHEN F. FRAZZINI, JUDGE TRIAL REFEREE.

Avia M., the child named above, is two years old,1 and she needs a sober, competent caretaker and a safe and stable home. Claiming that her parents can provide her with neither, on May 2, 2017, the Commissioner of Children and Families (commissioner) filed the pending petition to terminate their parental rights (TPR) under General Statutes § 17a-112. As statutory grounds for termination, the petition alleges, pursuant to § 17a-112 (j) (3) (B) (i), that the child was previously found neglected and that both parents have failed to rehabilitate such that they can assume a responsible position in the child's life in a reasonable time. The petition also alleges, pursuant to § 17a-112 (j) (3) (E), that the child is less than seven years of age and neglected, and that the father has both failed to rehabilitate and has lost parental rights as a consequence of another TPR petition for a different child. The petition further claims that termination is in the child's best interest. Both parents appeared on the initial hearing date for the petition and, after being appointed counsel and advised of their rights, denied the allegations of the petition. Trial was then scheduled for two days in January, 2018. For the reasons discussed below, the petition is granted and the commissioner is appointed statutory parent for the child.

Trial began on January 8, 2018, and evidence continued for two more days. When the father, Antonio M., failed to appear on the first day of trial, a default was entered against him pursuant to Practice Book § 35a-8 (a).2 The petitioner's motion to amend the petition to include additional factual allegations was thereafter granted without objection. Before evidence began, the mother, Agnieszka G., was advised in accordance with In re Yasiel R. , 317 Conn. 773, 794, 120 A.3d 1188 (2015). The court also granted the petitioner's motion for judicial notice and notified the parties that, pursuant to § 2-1 of the Connecticut Code of Evidence, it would take judicial notice of the contents of the court files, including memoranda of hearings and court orders, involving this child and her maternal and paternal half-siblings, except that factual assertions contained in pleadings, motions, or other documents filed by the parties would be taken as substantively true only if independent evidence thereof was introduced and found credible in this proceeding or was subject to the finality principles of res judicata or collateral estoppel.

During trial, the court heard testimony from the following witnesses:3

Amber Orvis, a social worker employed by the Department of Children and Families (DCF or department) who was assigned to a child protection investigation in 2014 when the New Britain Police Department notified DCF about domestic violence between these parents in the presence of Aaliya, Avia's older maternal half-sibling who was then nine years old, and again in 2016, when The Hospital of Central Connecticut notified DCF that Ms. G. had tested positive for cocaine and marijuana4 at the time of Avia's birth, and who is the author of the TPR social study;• Kristi Shooner, a DCF social worker who has supervised some of the mother's visits with the child;

Kara Fazzolari, a DCF social worker previously assigned to the cases for Avia and Aaliya and who is the author of the addendum to the TPR social study;

Alison Sroka, the DCF social worker currently assigned to Avia's case;

Samantha Larkin, a residential counselor at the New Life Center (NLC), which is an inpatient mother-child substance abuse treatment program of Community Health Resources (CHR) and where Ms. G. resided between April and November of 2016;

Lori Bergeron, a counselor at CHR's Milestone Program, an inpatient substance abuse treatment program at which Ms. G. was a patient from November 28, 2017, until she was successfully discharged from that program approximately thirty days later;5

Diane Gediman, a case manager for the Supportive Housing for Families program, which is funded by DCF through a contract with The Connection and a subcontract with Wheeler Clinic and who provided housing assistance and case management services to Ms. G.;

Daniel Millstein, a licensed clinical social worker employed by the Farrell Treatment Center (FTC), which provides treatment for substance abuse and "co-occurring disorders" and at which the mother has been a client during three periods relevant to these proceedings;

• Officer Matthew Morczko, of the New Britain Police Department, who concluded there was no probable cause for an arrest after investigating a report made by Ms. G. on August 22, 2017, that Mr. M. had accosted and injured her in her own dwelling;

• Officer Timothy Bradle of the Berlin Police Department, who arrested the mother on November 5, 2017, after finding her intoxicated and sitting in the driver's seat of a motor vehicle that had a key in the ignition and "was in someone's yard next to a basketball court"; Transcript of testimony on January 8, 2018, p. 21;Tina Schaffer, the director of admissions at the American Institute, a school offering vocational medical programs and at which Ms. G. has enrolled in a program to become a Certified Nurse's Assistant.

In addition, the parties introduced the following exhibits into evidence:

• The specific steps ordered on numerous occasions for the father and mother to take in order to reunite with Avia;

• The TPR social study dated...

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    ...... except on a temporary and ill-defined or partial basis". (internal quotation marks omitted)); In re Avia M., . Superior Court, judicial district of New Britain, Juvenile. Matters, File No. H14-CP16-011696-A (April 3, 2018). (reprinted ......
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