In re Elijah C.

• Decision Date: 29 March 2016
• Docket Number: No. 38519.,38519.
• Citation: 137 A.3d 944,164 Conn.App. 518
• Court: Connecticut Court of Appeals
• Parties: In re ELIJAH C.

164 Conn.App. 518

137 A.3d 944

In re ELIJAH C.^*

No. 38519.

Appellate Court of Connecticut.

Argued Feb. 29, 2016.

Decided March 29, 2016.^**

Matthew C. Eagan, assigned counsel, with whom were James P. Sexton, assigned counsel, and, on the brief, Michael S. Taylor, assigned counsel, for the appellant (respondent mother).

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

DiPENTIMA, C.J., and BEACH and FLYNN, Js.

DiPENTIMA, C.J.

The respondent mother, Marquita C.,¹ appeals from the judgment of the trial court terminating her parental rights as to her son, Elijah C. On appeal, she raises and analyzes three issues to argue that the court erred in determining that the Department of Children and Families (department) made reasonable efforts to reunify her with Elijah. Specifically, the respondent claims that (1) the department failed to provide federally mandated services to reasonably accommodate her intellectual disabilities, (2) the department failed to follow a court order to continue certain reunification services, and (3) the department must provide services that allow intellectually disabled parents a reasonable opportunity to retain custody of their children as part of reasonable efforts to reunify. We dismiss the appeal for lack of jurisdiction as it is moot.

The record reveals the following procedural history. The court granted the petitioner, the Commissioner of Children and Families, an ex parte order of temporary custody of Elijah shortly after he was born. The petitioner filed a neglect petition on February 21, 2014, on the basis of the doctrine of predictive neglect as a result of the respondent's diminished cognitive abilities.² The order granting temporary custody of Elijah was sustained four days later.

The court, Dyer, J., held a neglect trial on September 15, 2014. On October 2, 2014, the court adjudicated Elijah as neglected and ordered his care, custody, and guardianship committed to the petitioner. Additionally, the court ordered the department (1) to contact two state agencies to inquire about additional services for the respondent, (2) to ascertain from those agencies whether a group home existed where the respondent could potentially be reunified with Elijah and receive various forms of instruction, (3) to request the behavioral health center that was providing the respondent with psychotropic medications to conduct a medication management review, and (4) to file a written report with the court addressing various issues.

On November 4, 2014, the petitioner filed a motion for review of the permanency plan seeking to terminate the parental rights of the respondent. Judge Dyer held a trial on January 22, 2015, and six days later, the court issued its memorandum of decision. After considering the evidence presented, the court concluded that it was in the best interest of Elijah that the respondent be “afford[ed] ... a limited period of additional time to pursue reunification efforts,” namely, to continue with the services provided by the department. (Footnote omitted.) The time period, the court believed, “should not exceed six or seven months.” Ultimately, the court rejected the department's permanency plan of termination of parental rights.

On February 24, 2015, the petitioner filed a petition pursuant to General Statutes § 17a–112 to terminate the parental rights of the respondent and Paul Y. See footnote 1 of this opinion. On September 8 and 10, 2015, the court, Hon. Francis J. Foley III, judge trial referee, held a hearing on the termination of parental rights petition.³ On September 18, 2015, the court issued a comprehensive memorandum of decision. The court found by clear and convincing evidence that “[the department had] made reasonable efforts to reunify the child with [the respondent] ... [and the respondent] is unable to benefit from reunification services.” Consequently, the court terminated the parental rights of the respondent. This appeal followed.

The court's memorandum of decision from the termination hearing sets forth the following facts relevant to this appeal. Shortly after Elijah was born, the hospital personnel were concerned because the respondent “appeared to have cognitive limitations and serious mental health problems (schizophrenia ) and that [the respondent] was reported to have poor judgment and no insight into parenting.” Thus, the hospital contacted the department, who sent a social worker to observe the respondent and Elijah. The social worker concluded that the respondent could not care for Elijah because of the severity of her limitations.

The respondent's lengthy and exceptionally sad involvement in the child welfare system provides the context to the present appeal. The respondent was born prematurely, addicted to cocaine and alcohol, and suffered serious medical conditions. In April, 1989, the respondent was placed in foster care with Gwendolyn C. and her then husband. In 1993, Gwendolyn and her then husband adopted the respondent and another girl unrelated to the respondent. In 1994, the respondent's adoptive parents divorced. Between 1997 and 1999, Gwendolyn adopted three more children.

The respondent's childhood with Gwendolyn was difficult. Under her care, the respondent and the other children were “cruel[ly] discipline[d] ... [by her] making them run up and down stairs, standing them on one leg with their arms outstretched holding a book in each arm, [and] beating the children with a stick and with a belt.” In July, 2001, just prior to the respondent's thirteenth birthday, Gwendolyn abandoned three of her adoptive children, including the respondent, at the department's Meriden office. Gwendolyn explained that she could no longer care for the children. All three children were underweight, which lent credence to claims that Gwendolyn routinely withheld food from the children.

After being abandoned by Gwendolyn, the respondent remained in the custody of the petitioner as a committed child for approximately six years. The respondent qualified for postmajority services through the Department of Developmental Services and the Department of Mental Health and Addiction Services. The department developed a postmajority plan in which both agencies were to provide the respondent with “life skills, vocational training, and supportive housing.” The postmajority plan, however, never came to fruition because, prior to her nineteenth birthday, the respondent returned to Gwendolyn's care. The respondent resided with Gwendolyn for the next several years before cohabitating with Paul Y. After the respondent and Paul Y.'s relationship ended, she returned to Gwendolyn's home. Approximately four months later, Elijah was born.

The court's memorandum of decision also detailed the department's efforts to reunite Elijah with the respondent. It noted that the department offered the respondent case management services, three in-home visits per week with a parenting skills component, the opportunity to attend Elijah's medical visits by providing transportation, and services from two agencies to provide supervised visitation and training in basic childcare skills. Concerned that the respondent was “being overwhelmed with too many services,” the department sought and was granted permission for the respondent to undergo psychological evaluations.

The respondent underwent two psychological evaluations that informed the court's decision. The first evaluation, conducted by Madeleine Leveille, a licensed psychologist, was completed in August, 2014, prior to the neglect trial. In addition to providing the court with the respondent's background, Leveille's evaluation made key observations and opinions. For example, when discussing her mental illness, the respondent told Leveille that she regularly saw a “shadow,” which Leveille characterized as a visual hallucination. Leveille concluded that the respondent had a “limited conceptual understanding, [was] highly dependent socially on others, and [had] odd and occasionally paranoid and cynical thought processes.” Moreover, the respondent's “thinking processes show[ed] clear evidence of her [i]ntellectual [d]isability, [s]chizophrenia and a mood disorder.” Leveille was unequivocal that “[h]aving an [i]ntellectual [d]isability does not mean that one cannot parent a child. In [the respondent's] case, however, her intellectual disability, coupled with her psychiatric conditions, particularly her personality disorder, render her incapable of parenting a child independently.”

Approximately two months before the termination trial, in July, 2015, the respondent underwent a second evaluation. This evaluation was funded by the department in an effort to assess the respondent on an “individualized basis.” The “Cognitive/Adaptive Functioning Evaluation” was conducted by Stephanie Stein Leite, a licensed psychologist. Leite concluded that the respondent had an intelligent quotient that placed her in the “[e]xtremely [l]ow range,” i.e., at the “bottom [one] percentile of the [population]....” Leite's evaluation also concluded that the respondent's personal and social skills, adaptive behavior, the ability to perform daily living skills by an individual were in the one percent range, i.e., “[ninety-nine percent] of the population [have] better adaptive functioning skills than does [the respondent].” Leite's assessment indicated that the respondent's “eating, dressing, and hygiene skills [were] commensurate with a six year old ... [that] [s]he complete[d] household chores at the level of an eleven year old, and use[d] time, money, and communication tools at the level of a [thirteen] year old.” In short, Leite's evaluation demonstrated that the respondent, pursuant to General Statutes § 1–1g,⁴ was intellectually disabled. On the basis of these results, Leite opined that the respondent was ...