In re Brayden E.-H., 19136.

• Court: Supreme Court of Connecticut
• Citation: 309 Conn. 642,72 A.3d 1083
• Decision Date: 30 July 2013
• Docket Number: No. 19136.,19136.
• Parties: In re BRAYDEN E.-H. et al.

309 Conn. 642

72 A.3d 1083

In re BRAYDEN E.-H. et al.^*

No. 19136.

Supreme Court of Connecticut.

Argued May 16, 2013.

Decided July 30, 2013.^**

James P. Sexton, assigned counsel, for the appellant (respondent mother).

Michael Besso, assistant attorney general, with whom were Susan T. Pearlman, assistant attorney general, and, on the brief, George Jepsen, attorney general, and Gregory T. D'Auria, solicitor general, for the appellee (petitioner).

Priscilla F. Hammond, for the minor children.

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, EVELEIGH, McDONALD and ESPINOSA, Js.

McDONALD, J.

The respondent mother, Elise E. (respondent),¹ appeals ² from the judgments of the trial court terminating her parental rights with respect to her two minor children, B and L, and awarding permanent guardianship of the children to their paternal great-aunt and her husband, Jane I. and John I. The respondent contends that the trial court's application of General Statutes § 17a–112³ in terminating her parental rights violated substantive due process guaranteed under the federal constitution, or alternatively under the state constitution, because the trial court was required to determine that termination was the least restrictive permanency plan to protect the children's best interests. The respondent further contends that this standard was not met in the present case because termination was not required when permanent guardianship was sufficient to accomplish that purpose. We conclude that, even if we were to assume, arguendo, that such a least restrictive determination is constitutionally mandated, a proposition vigorously contested by the petitioner, the Commissioner of Children and Families, the respondent's claim fails because the record reflects that this standard was satisfied. Accordingly, we affirm the judgments of the trial court.

The record reveals the following undisputed facts found by the trial court and procedural history.⁴ The respondent reportedbeing a victim of sexual abuse as a very young child, a fact that she did not reveal until she was eighteen. This abuse, her own mother's emotional unavailability, and her father's alcoholism contributed to substantial mental health and substance abuse issues that ever since have burdened the respondent.

The respondent's conditions manifested themselves early in her life. She was in counseling by age five. At fourteen, she was admitted to Natchaug Hospital for “out of control” behavior. From ages sixteen to eighteen, she suffered from anorexia and bulimia. During this period, the respondent became involved in the juvenile court system and was sent to Riverview Hospital for evaluation, remaining there for treatment for three months. At age eighteen, she was admitted to the Institute of Living for her eating disorders. At age twenty-one, she entered a substance abuse treatment facility.

In 2007, at age twenty-three, the respondent gave birth to B, the first of her two children with Floyd H. The respondent had met Floyd when the two were in middle school. Floyd had his own troubled family history that he brought to the relationship. The two bonded through their emotional neediness and their abuse of marijuana and alcohol. They married in 2005. Floyd filed for divorce in June, 2008, after which the two maintained a turbulent relationship that included incidents of domestic violence.

The respondent's mental health and substance abuse problems continued to plague her after B's birth and after the birth of her second child, L, in 2009. In summer, 2008, the respondent entered the Natchaug Hospital adult inpatient unit on two separate occasions due to substance abuse and depression. By the end of 2008, the respondent was in a residential treatment facility, but later was discharged due to an altercation with another resident. In 2010, the respondent was admitted and treated for short periods of time at two different hospitals; admission tests revealed her blood alcohol level to be 0.232 and 0.293, approximately three times the legal limit for operating a motor vehicle. In 2010, the respondent entered various treatment programs, none of which was able to control her dual, chronic illnesses.

The respondent's illnesses also led to numerous interactions with the criminal justice system. The respondent acknowledged having been subject to twenty arrests, most of them for alcohol related incidents. Her Connecticut conviction record reflects eleven arrests, most involving multiple criminal violations. The majority of these violations was for operating a motor vehicle while under the influence of intoxicating liquor, disorderly conduct, assault (including assault of police officers), violation of probation, and violation of restraining or protective orders. One arrest for a violation of a protective order occurred in August, 2011, when the respondent entered Floyd's home in an intoxicated and agitated state while he had custody of their children. These arrests reflect the sad fact that the respondent becomes violent and out of control when she drinks alcohol, and she becomes destructive—to herself, to property and to others.

As a result of these circumstances, the Department of Children and Families (department) first became involved with the family in 2008. In September, 2008, B was removed from his parents' care following a fully contested order of temporary custody, and thereafter was placed with his paternal grandparents. In December, 2008, B was committed to the custody of the petitioner, and thereafter was placed with the respondent at the residential treatment facility where she was then residing. After the respondent was expelled from that facility, B was placed back in the petitioner's care and custody. B was reunited with his parents in July, 2009. In July, 2010, a second contested order of temporary custody for both children was sustained, resulting initially in a foster care placement. In January, 2011, an adjudication of neglect was entered, and the children were placed under protective supervision with Floyd. In February, 2011, both children were removed from Floyd's care and committed to the petitioner's care after day care providers noticed bruising on B's buttocks and upper leg. Floyd later was convicted of charges in relation to this incident and was placed on probation. The children were then placed in foster care with Jane and John.

In October, 2011, the petitioner filed motions for review of permanency plans for the children, in which she proposed the termination of both parents' rights and adoption. The respondent filed an objection, contending that the department had not made reasonable reunification efforts and that reunification was in the children's best interests. In February, 2012, the trial court, Dyer, J., issued a decision approving the permanency plans and overruling the respondent's objection. At the time the court issued its decision, the respondent was incarcerated on a felony conviction and was not expected to be released from custody to the community for at least several more months, after which time she would be on probation for a period of five years. The court first concluded that the department and other agencies had offered appropriate rehabilitation and reunification services to both the respondent and Floyd. The court further concluded that, in accordance with General Statutes § 46b–129 (k), the petitioner had established by a preponderance of the evidence that the proposed plan of termination and adoption was in the best interests of the children. In so concluding, the court acknowledged the respondent's regular communication with her children while she was incarcerated, as well as her appropriate interactions with them when they visited her monthly. The court also noted, however, significant gains made by both children during the past year that they had been in foster care with Jane and John, who had expressed a willingness to adopt the children.⁵ In particular, B's therapy had helped ameliorate aggression and defiance that had manifested as a result of his having been uprooted repeatedly from his parents' care and having been exposed to his parents' discordant relationship. The court ultimately found: “[T]he respondent's chronic history of relapses and failed substance abuse treatment during the past two years, and her criminal record that includes several arrests for violation of protective/restraining orders and violation of probation, cast doubt upon the respondent's assurances of appropriate postrelease comportment, and compliance with [the department's] requirements and court orders.... [T]his court cannot determine that [the respondent] will be able to resume a responsible parental role in the lives of the children within a reasonable period of time in the future, especially given the ages of the children, and the length of time they have already spent in foster care.... The totality of the evidence proved that both children presently require the stable and permanent home that their biological parents have thus far been unable to provide for them. The evidence also suggests that it would be detrimental to delay permanency for [the children] any further in order to allow an uncertain amount of time in the future for possible parental rehabilitation.”

In November, 2011, the petitioner filed petitions to terminate the parental rights of the respondent and Floyd. Although both parents contested the petitions, neither sought custody of the children; Floyd sought a transfer of permanent guardianship to Jane and John, and the respondent sought transfer of an unspecified type of guardianship to Jane. In accordance with § 17a–112 (j); see footnote 3 of this opinion; the court, Hon. Francis J. Foley III, judge trial referee, found by clear and convincing evidence in the adjudicatory stage of the proceedings that: there had been a prior adjudication of neglect; the department had made reasonable efforts to promote reunification through...