In re Elvin G.

• Decision Date: 12 November 2013
• Docket Number: No. 19108.,19108.
• Citation: 310 Conn. 485,78 A.3d 797
• Court: Connecticut Supreme Court
• Parties: In re ELVIN G. et al.

310 Conn. 485

78 A.3d 797

In re ELVIN G. et al.^*

No. 19108.

Supreme Court of Connecticut.

Argued March 18, 2013.

Decided Nov. 12, 2013.

Dana M. Hrelic, with whom were Kenneth J. Bartschi and, on the brief, Brendon P. Levesque, Hartford, and Jason Bogli, for the appellant (respondent father).

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

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

ROGERS, C.J.

This case raises the question of whether a prior order of specific steps to aid in reunification is a necessary prerequisite for any termination of parental rights that is based solely on a parent's failure to rehabilitate. The respondent father appeals ¹ from the judgments of the trial court terminating his parental rights with respect to his minor children, Elvin G.² and Kadahfi G. The respondent claims that the trial court improperly terminated his parental rights pursuantto General Statutes § 17a–112 (j)(3)(B)(i)³ based on his failure to rehabilitate because court-ordered specific steps are statutorily required and the petitioner, the Commissioner of Children and Families (commissioner), never provided him with such specific steps.⁴ We disagree with the trial court's conclusion that the prior provision of specific steps is not required in termination proceedings based on § 17a–112 (j)(3)(B)(i). We agree with the court, however, that under the particular circumstances of this case, specific steps would not have made any difference in the respondent's failure to rehabilitate. Accordingly, because the failure to provide specific steps was harmless error, we affirm the judgments of the trial court.

The following facts, as found by the trial court, and procedural history are relevant. When the respondent's parental rights were terminated on October 1, 2012,⁵ Elvin and Kadahfi were ten and nine years old, respectively. The respondent was thirty-one years old and had spent most of his adult life, as well as his children's lives, in prison. In June, 2000, he was convicted of drug offenses and incarcerated. He was released under supervised parole on April 17, 2001, but was incarcerated again on January 22, 2002, for additional drug offenses. Three weeks later, Elvin was born. The respondent was released to a Department of Correction halfway house on September 20, 2002, but escaped seven days later. In January, 2003, he was found and arrested, and on May 23, 2003, he was convicted and incarcerated anew for the escape. One month later, Kadahfi was born. Except for a five week period during the summer of 2004, the respondent remained incarcerated. During that five week period, he was arrested for the federal crime of possession of a stolen firearm. On November 2, 2005, following his conviction for that crime, the respondent was transferred from state to federal custody and, thereafter, was incarcerated in various federal prisons. He remained incarcerated at the time his parental rights were terminated.⁶

For several years following their births, Elvin and Kadahfi lived with their mother, who had two other sons with different fathers. The Department of Children and Families (department) became involved with the family in 2006, when the mother tested positive for phencyclidine, or PCP, at the time one of her other sons was born. The mother was struggling with substance abuse and needed housing and assistance. On May 11, 2006, the department filed neglect petitions, citing the mother's PCP use and lack of stable housing, and the respondent's incarceration and failure to provide a plan for the care, welfare and safety of Elvin and Kadahfi. The mother entered a plea of nolo contendre, and the respondent stood silent. On November 28, 2006, the children were adjudicated neglected, but remained with their mother under the protective supervision of the department. The trial court, Wollenberg, J., ordered specific steps as to the mother only. On January 31, 2008, because of the respondent's continued incarceration and the mother's inability to overcome her substance abuse issues, the children were committed to the custody of the department and were placed with their maternal grandmother. The trial court, Olear, J., again ordered specific steps for the mother only. In April, 2008, when the grandmother became ill and could no longer care for them, the children were placed in foster care, where they remained at the time of trial.

While Elvin and Kadahfi were in their mother's care, she refused to take them to prison to visit the respondent. Consequently, the children's only contact with the respondent during that period was by telephone. When the department assumed custody in 2008, it provided monthly visitation between the children and the respondent by picking up the children from their foster homes, driving them to the federal prison in Otisville, New York, where the respondent was incarcerated at that time, and supervising the visits. The children occasionally misbehaved during these visits, but also seemed to enjoy them.

The children's last visit with the respondent was on February 21, 2010, almost two years prior to the trial in this matter.⁷ When the department's social worker and the children arrived for the next scheduled visit on March 22, 2010, they were told that the respondent was not permitted to have visitors. On March 30, 2010, the department filed petitions to terminate both the mother's and the respondent's parental rights on the sole basis that Elvin and Kadahfi previously had been found to be neglected and both parents had failed to rehabilitate.⁸ On May 16, 2010, another visit was attempted, but the department's social worker learned that the respondent would not be permitted to have any visitors until September, 2011. Federal inmate disciplinary records submitted at trial revealed that the respondent had tested positive for marijuana on February 18, 2010, and was sanctioned by losing his visitation rights for eighteen months.⁹ At the respondent's behest, the department wrote to prison officials twice to request that his visitation rights be reinstated, but received no response. In December, 2010, the respondent was transferred by federal authorities to a prison in Oklahoma and, about one month later, was transferred again to a prison in Arizona. In January, 2012, the respondent was transferred again to a prison in California.

The trial court, Epstein, J.,¹⁰ made the following specific findings regarding the children. As a result of their traumatic childhoods, Elvin and Kadahfi have experienced serious difficulties and exhibited aggressive and defiant behaviors. Elvin has struggled with anger management issues, poor school performance, inattentiveness, impulsivity and anxiety and mood disorders. In December, 2010, he was hospitalized for a psychiatric problem. In a court-ordered psychological evaluation, Elvin spoke positively about the respondent, but also indicated a belief that the respondent had been incarcerated for eleven years. As the trial court found, that number was incorrect, but Elvin's “perception that his father has been in jail all of [Elvin's] life is clear.” With the assistance of his foster family and various therapists, Elvin has been improving, but he continues to need help. Elvin has bonded with his foster family and wants to be adopted by that family. One of Elvin's younger half brothers also resides with the foster family, and the family arranges for visits with Kadahfi and the other half brother.

Kadahfi initially was placed in a therapeutic foster home, but his aggressive and defiant behaviors led the foster parents to request his removal. He also experienced difficulties in a second foster home, but has done well at his third placement. Kadahfi relates well to his current foster parents, has limited recollection of living with his mother and has told a court-appointed psychologist that he has no memories of the respondent. He would like to be adopted by the foster family. The other half brother has joined Kadahfi at the foster home, and the two boys have a good and supportive relationship. The foster family would like to adopt both Kadahfi and his half brother.

Kadahfi has suffered disturbing episodes while at school, such as engaging in tantrums, rolling himself into a ball, covering his ears and rocking back and forth. He also has been expelled. After being transferred to a different school, Kadahfi has improved. More recently, he has been mainstreamed into a regular education program.

A psychologist has diagnosed Kadahfi with post-traumatic stress disorder and attention deficit hyperactivity disorder, resulting from abuse, neglect, in-utero drug exposure, witnessing domestic violence, his mother's poor health condition and addiction, the respondent's incarceration, and multiple foster placements. That psychologist has stressed Kadahfi's need for lasting, positive attachments so that he may feel secure and able to address the experiences that underlie his distress. Kadahfi has received therapy and medication for his behavioral issues. His negative behaviors have diminished, and he has developed skills to address his violent and traumatic reactions, and has begun to adhere to household and school rules.

After summarizing the evidence and making the foregoing findings, the trial court found, by clear and convincing evidence, that the department had made reasonable efforts to reunify the respondent with Elvin and Kadahfi, that the respondent had failed to rehabilitate and that termination of his parental rights was in the children's best interests. In regard to reasonable efforts, the court found that, due to the respondent's incarceration during the entire period of department involvement, the department was not able to provide him with...