In re Brendan C.
| Decision Date | 14 June 2005 |
| Docket Number | No. 25326, 25327.,25326, 25327. |
| Citation | 89 Conn.App. 511,874 A.2d 826 |
| Court | Connecticut Court of Appeals |
| Parties | In re BRENDAN C. |
Raymond J. Rigat, Clinton, for the appellant (respondent father).
Joseph A. Geremia, Jr., Waterbury, for the appellant (respondent mother).
Robert W. Clark, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan Quinn Cobb, assistant attorney general, for the appellee (petitioner).
Lucy W. Rankin, for the minor child.
DRANGINIS, BISHOP and DiPENTIMA, Js.
In separate appeals, now consolidated, the respondent parents challenge the judgment of the trial court terminating their parental rights as to their minor child. In AC 25327, the respondent mother's sole claim is that the court failed to appoint a separate guardian ad litem for the child as required by General Statutes § 46b-129a. In AC 25326, the respondent father claims that (1) the child was not afforded adequate legal representation, (2) the court failed to appoint a guardian ad litem for the father as mandated by General Statutes § 45a-708(a) and the procedural due process clauses of the fourteenth amendment to the United States constitution and article first, §§ 8 and 10, of the constitution of Connecticut, (3) the department of children and families (department) failed to make reasonable efforts at reunification as required by General Statutes § 17a-112(j)(1), (4) the department failed to make reasonable accommodations in the provision of reunification services pursuant to the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., (5) the court improperly determined that termination of the father's parental rights was in the child's best interest, (6) termination of the father's parental rights violated his substantive due process rights under the fourteenth amendment to the United States constitution and article first, §§ 8 and 10, of the constitution of Connecticut, and (7) termination of the father's parental rights violated his right to equal protection under article first, § 20, of the constitution of Connecticut. It is noteworthy that none of those claims was raised before the trial court. We affirm the judgment of the trial court.
The petitioner, the commissioner of children and families (commissioner), filed a neglect petition on April 6, 2001. At the time, the child, whose date of birth is November 16, 1997, was three years old. The petition was founded on the following facts. The department had been called to investigate allegations of physical abuse, subsequently substantiated, that the father had thrown a remote control device that hit the child in the head. The mother reported instances of spousal abuse by the father. The mother was unable to control the child, who habitually hit her and swore at her when she directed him to do something. The child, who suffered from expressive speech disorder with significant speech and language delays, had a poor record of attendance at prekindergarten.
Prior to the disposition of the neglect petition, the respondents underwent court-ordered psychological evaluations by psychologist Ruth M. Grant in August, 2001. Grant found that the mother was emotionally detached and unable to control the child's physical aggression or to set boundaries. As to the father, Grant reported that he had a benign brain tumor that caused seizures, which were controlled by medication, and noted that the medications he took could have the effect of slowing brain functioning. Grant determined that although the father was "not technically retarded," he was functioning in "the mild mental retardation range. . . ." Grant also observed that the child appeared emotionally detached from the respondents.
The court issued an order of temporary custody on October 2, 2001, placing the child in the custody of the commissioner. The child was placed first in a safe home and then in a foster home. During that time, the child's speech and behavior improved, and he was toilet trained. In December, 2001, he was evaluated by Grant. She found him to be of average intelligence and noted that he continued to have problems in terms of verbal and perceptual skills but was showing signs of progress. During the evaluation, the child volunteered that he missed his parents and stated that he liked to visit them but indicated that he did not want to return home. Grant noted that the child was cooperative, responsive and pleasant during the visit and that she had observed none of the aggressive behavior in which she had seen him engage with the mother.
Meanwhile, the department referred the respondents to the family reunification center (center) at a family and children's agency for reunification efforts. The respondents underwent psychiatric evaluation by Paula Levy. Levy observed that the mother had a "rigid and incomplete approach to potentially any situation, and, thereby, reduced ability to actually deal with it effectively." Levy concluded that the father's cognitive functions were somewhat impaired, but that he was "capable of addressing complicated, multifaceted issues and problems in an almost surprisingly comprehensive, nuanced way, reflecting considerable capacity for understanding, along with limitations." Levy disagreed with Grant that the father's reduced cognitive functions were the result of medication and attributed his mental condition to a head trauma he had sustained at the age of nine. The respondents also received couples counseling, individual counseling and parenting classes. In addition, the center supervised eighteen therapeutic visits between the child and the respondents.
On February 11, 2002, the child was adjudicated neglected, and nine months of protective supervision was ordered. The child was returned to the care of the respondents on February 20, 2002. A therapist from the center and a parent aide from another agency visited the home more than eight hours a week. The respondents continued to attend parenting classes, and the child and the respondents were provided with family counseling. A therapist was on call for the respondents through a pager at all times. Following his return to the custody of the respondents, the child's behavior deteriorated, and he began soiling himself again. The family's agency caseworker wrote a letter to the department in which she addressed four areas of concern, including the respondents' inability to recognize the seriousness of the situation, their denial of responsibility, their inability to adapt parenting techniques they had learned to real life interaction with their son, and the father's failure to recognize that his loud and aggressive language was harming his son. On March 11, 2002, the caseworker informed the department that the child's home was neither a safe nor a healthy environment for him.
On March 14, 2002, a second order of temporary custody was issued, and the child again was removed from his parents. A motion to modify the order of protective supervision to a commitment of the child to the care and custody of the commissioner subsequently was granted. Both respondents and the child continued to undergo court-ordered psychological evaluations. At those evaluations, Grant noted that the mother seemed content for the child to visit, but unconcerned with his returning home, and concluded that the mother "did not display the appropriate concern for his care or display the ability to meet his needs." Grant observed that the father was more emotionally affected by the child's removal. He continued to blame the mother for all parenting difficulties. Grant observed that the child was traumatized by the domestic violence and screaming at home. She noted that he continued to say that he liked visiting with the respondents, but that he did not want to live with them.
The commissioner filed a petition on December 24, 2002, seeking termination of the respondents' parental rights. A four day trial was held in December, 2003. In a thorough, sixty-seven page memorandum of decision, issued March 1, 2004, the court ordered the termination of the respondents' parental rights. The court found that the department had made reasonable efforts at reunification, but that the respondents were unable to benefit from the services offered. The court determined that the commissioner had proved by clear and convincing evidence that neither of the respondents had achieved the level of rehabilitation necessary to provide appropriate parental care to the child, and that considering the child's age and need for permanency, neither respondent would be able to assume a responsible parental role within a reasonable time. The court concluded that it was in the child's best interest that the parental rights of both respondents be terminated and that he be adopted by his current foster parents.2 Judgment was rendered accordingly on March 1, 2003. These appeals followed.
Both respondents claim that the child received inadequate representation because the court failed to appoint a guardian ad litem pursuant to § 46b-129a, which requires the court to appoint counsel for a minor child in any proceeding under § 46b-129.3 It further directs that "[w]hen a conflict arises between the child's wishes or position and that which counsel for the child believes is in the best interest of the child, the court shall appoint another person as guardian ad litem for the child. . . ." General Statutes § 46b-129a(2). Thereafter, the guardian ad litem's role is to advocate the best interest of the child while counsel continues to advocate for the child in accordance with the Rules of Professional Conduct. See id. The respondents claim that counsel for the child acted in derogation of her role of advocate because she argued in support of full termination of parental rights rather than for the child's articulated desire to continue visiting with the respondents. They argue further that because...
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