In re Deana E.

• Decision Date: 26 December 2000
• Docket Number: (AC 20376)
• Court: Connecticut Court of Appeals
• Parties: IN RE DEANA E. ET AL.

61 Conn. App. 197

763 A.2d 45

IN RE DEANA E. ET AL.¹

(AC 20376)

Appellate Court of Connecticut.

Argued October 16, 2000.

Officially released December 26, 2000.

Foti, Spear and Pellegrino, Js. Dale H. King, for the appellant (respondent father).

Jane R. Rosenberg, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

Opinion

SPEAR, J.

The respondent father, Celso S.,² appeals from the judgments of the trial court terminating his parental rights with respect to his three children, C, S and A.³ The respondent claims that the court improperly (1) denied his motion to bifurcate the proceedings and (2) found that the commissioner of children and families (commissioner) proved by clear and convincing evidence that the respondent had failed to achieve personal rehabilitation within the meaning of General Statutes § 17a-112 (c) (3) (B).⁴ We affirm the judgments of the trial court.

In a comprehensive memorandum of decision, the court found the following facts. On March 10, 1995, the department of children and families (department) received a referral regarding D, a half sibling of the respondent's children. The department ascertained that the mother and the respondent were living together in squalor. The house was infested with cockroaches, piles of clothes were strewn about the house and there were no mattresses or sheets for the children to sleep on. During a subsequent investigation, the department determined that the respondent had severely beaten D and two other half siblings, Y and M, with an electrical cord because they continued to jump on a bed after he had asked them to stop.

To prevent the removal of her children from her care, the mother signed an agreement with the department in which she agreed that the respondent would move out of the home for a period of time and would not have contact with the children. As a result of the beating incident, the respondent was charged with two counts of assault in the second degree, three counts of risk of injury to a child and one count of assault in the third degree. As part of the criminal proceeding, a restraining order was issued on March 21, 1995, which provided that the respondent was not to have any contact with the children during the pendency of his criminal case. The respondent violated the order almost immediately when he visited the mother and the children within a week of the order's issuance. D, Y and M later revealed in therapy that the respondent continued to abuse them physically. The respondent was convicted on August 2, 1995, of one count of assault in the second degree and one count of risk of injury to a child.

On August 22, 1995, the commissioner filed neglect petitions alleging that D, Y and M and the respondent's own children, C, S and A, were being denied proper care and attention physically, educationally, emotionally or morally and that the children were being permitted to live under conditions, circumstances or associations injurious to their well-being.⁵ Prior to the granting of the neglect petitions, an order of temporary custody was requested by the commissioner. Temporary custody of the children was granted by the court on October 6, 1995, after the mother left the children with an inappropriate caregiver whose own children recently had been removed from their home because of physical abuse. M reported that on the weekend prior to the granting of the temporary custody order, the respondent had pushed him against the wall several times and caused a large bump on his head that remained for more than one week. D stated that on that same weekend, the respondent had hit her on her back, legs and hands with the electrical cord and that he had done this on prior visits. Finally, Y reported that the respondent had also hit her on the back, legs and hands with the cord on numerous occasions. The children all confirmed that their mother had not kept them away from the respondent.

While in foster care, the children received therapy. During therapy, D and Y revealed other occurrences of abuse. D revealed that her mother forced her to cook for the children. On one occasion when her mother was dissatisfied with the meal, the mother threw the food on the floor, at which point the respondent beat D with an electrical cord. Y revealed that the respondent would also beat her mother if she tried to intervene while the respondent was beating Y.

The department offered the respondent extensive services, but he chose not to take advantage of the numerous opportunities that he was given to improve his parenting skills. The department offered him participation in a parent aid program that commenced in September, 1995, which he refused. In October, 1995, the department also referred him to Winthrop Family Support Center for anger management counseling and a men's support group. He did not complete those programs. He received couples counseling until he moved to Puerto Rico in the spring of 1996. The department also referred him to a men's support group and an English as a second language program offered in December, 1996. The respondent did not complete those programs. Furthermore, the respondent was offered individual counseling through Catholic Charities in 1997, but he did not attend. In addition, he failed to attend classes at the Institute for Hispanic Families. On February 4, 1997, a court committed the children to the care and custody of the commissioner as neglected children.

On August 19, 1998, the commissioner filed petitions for the termination of parental rights of the respondent with respect to his three children after reunification efforts with the mother had failed.⁶ With respect to the respondent, the petitions alleged that a court had found, in a prior proceeding, that his children were neglected and that the respondent had failed to achieve such a degree of personal rehabilitation as would encourage the belief that, within a reasonable time considering the age and needs of the children, he could assume a responsible position in the life of his children.⁷ General Statutes § 17a-112 (c) (3) (B).

On December 4, 1998, the respondent moved to bifurcate the adjudicatory phase of the termination proceeding from the dispositional phase. The respondent claimed that to balance the interests involved, bifurcation of the proceedings was required. The court, Munro, J., denied the respondent's motion to bifurcate.

The court, Rogers, J., found by clear and convincing evidence that the respondent had failed "to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child...." General Statutes § 17a-112 (c) (3) (B). The court found that "[a]s of the filing of the termination petitions, [the respondent] had failed to complete any of the parenting classes, parent aid programs, anger management courses, or men's support groups that were offered to him by [the department. The respondent] has made numerous excuses for failing to complete any of these programs. These excuses included his moving to Puerto Rico as part of a plan to reunite him with the children once [the department] returned the children to the mother, his moving to Vernon to protect himself from the family of [the mother's] boyfriend and, finally, timing conflicts between his employment and these programs. The fact still remains, however, that this father by his own choice of priorities has not taken advantage of any of the services that would demonstrate a genuine, sustained effort by him to become a competent parent." The court terminated the parental rights of the respondent pursuant to § 17a-112 (c) (3) (B) for the failure of the respondent to achieve personal rehabilitation.⁸ This appeal followed.

I

"A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition.... In the adjudicatory phase, the trial court determines whether one of the statutory grounds 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 termination is in the best interests of the child." (Internal quotation marks omitted.) In re Galen F., 54 Conn. App. 590, 594, 737 A.2d 499 (1999); see also In re Roshawn R., 51 Conn. App. 44, 52, 720 A.2d 1112 (1998). "A petition to terminate parental rights consists of two phases .... It is not necessary, however, that the two phases be the subject of separate hearings. One unified trial ... is permissible." (Citations omitted.) In re Eden F., 48 Conn. App. 290, 305-306, 710 A.2d 771 (1998), rev'd on other grounds, 250 Conn. 674, 741 A.2d 873 (1999). Practice Book § 33-3 (b) provides that "[i]n the discretion of the judicial authority, evidence on adjudication and disposition may be heard in a non-bifurcated hearing, provided disposition may not be considered until the adjudicatory phase has concluded."

Our standard of review of a court's decision to bifurcate a termination of parental rights hearing is well settled. The decision whether to bifurcate a termination of parental rights proceeding lies solely within the discretion of the trial court. See State v. Anonymous, 179 Conn. 155, 172-74, 425 A.2d 939 (1979); see also In re Tabitha P., 39 Conn. App. 353, 360 n.6, 664 A.2d 1168 (1995). "In reviewing claims that the trial court abused its discretion the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness; the ultimate issue is whether the court could reasonably conclude as it did...." (Internal quotation marks omitted.) In re Jose C., 11...