In Re Jaime S., 30956.

• Decision Date: 27 April 2010
• Docket Number: No. 30956.,30956.
• Citation: 120 Conn.App. 712,994 A.2d 233
• Court: Connecticut Court of Appeals
• Parties: In re JAIME S.

120 Conn.App. 712

994 A.2d 233

In re JAIME S.^*

No. 30956.

Appellate Court of Connecticut.

Argued Jan. 5, 2010.

Decided April 27, 2010.

COPYRIGHT MATERIAL OMITTED

David J. Reich, for the appellant (respondent).

Howard I. Gemeiner, New Haven, for the appellee (petitioner).

LAVINE, BEACH and ROBINSON, Js.

LAVINE, J.

This appeal requires that we determine whether the trial court properly found that the respondent father had abandoned his son pursuant to General Statutes § 45a-717 (g)(2)(A). In adjudicating a petition to terminate parental rights on the ground of abandonment, the court's focus is on the parent's conduct. In re Kezia M., 33 Conn.App. 12, 17, 632 A.2d 1122, cert denied, 228 Conn. 915, 636 A.2d 847 (1993). The father ¹ claims on appeal that (1) the court's findings that (a) he abandoned his son and (b) it was in the son's best interest to terminate his parental rights are clearly erroneous, and (2) the court violated his right to due process by denying his request for a continuance so that he could participate in the second day of trial. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the father's claims. On March 19, 2007, the petitioner mother filed a petition to terminate the parental rights of the father as to their son in the Court of Probate for the district of Meriden. In support of her petition, the mother alleged that she and the father married in Riverside in 1999, separated in 2001 and were divorced in the state of New York in 2003. In October, 2002, a New York court ordered an emergency medical evaluation of the father on the basis of his conduct in open court. The father indicated that he was going to commit suicide. The mother also alleged that, during and subsequent to the divorce proceedings, the court ordered supervised visitation for the father with his son but that the supervising agencies terminated the visitation due to the father's inappropriate behavior.

The mother further alleged that since the time of the divorce, the father has threatened her life. She and the son fled New York to a safe house and have kept their whereabouts from the father. The father subsequently filed a petition for visitation with the child, but the petition was denied by the New York family court. The mother also alleged that at the time she filed the petition to terminate the father's parental rights, a permanent order of protection for her and the child was in effect. Moreover, she alleged that the father was a substance abuser, who has been incarcerated several times since the date of the parties' marriage. The mother alleged her belief that the only way that she and the child could be safe was to terminate the father's parental rights. She sought to terminate the father's parental rights on the grounds of abandonment, denial of care, guidance or control necessary for the child's well-being and no ongoing parent-child relationship pursuant to § 45a-717 (g).

On May 9, 2007, the Probate Court Hon. Brian T. Mahon, asked the department of children and families (department) to investigate and to provide a written report on or before August 7, 2007. On December 18, 2007, the Probate Court granted the father's motion to transfer the termination proceedings to the Superior Court for juvenile matters. The Superior Court for juvenile matters subsequently transferred the matter to the Child Protection Session. On September 4, 2008, the father appeared in Superior Court with counsel, waived any defects in service, waived his advisement and entered a pro forma denial of the allegations of the petition. The father also requested, and the mother agreed, that the child undergo a psychological evaluation. On October 2, 2008, counsel for the father informed the court that the father was being detained by the United States Bureau of Immigration and Customs Enforcement (immigration service).²

Trial on the termination petition commenced, as scheduled, on January 21, 2009. The mother was present with counsel. The father, who participated via telephone from New Mexico where he was being detained, was represented by counsel. The child's counsel also was present.

The mother called the father as her first witness.³ The father testified that he had been arrested eight to ten times but that he had been incarcerated only three times. Two of his incarcerations were the result of his having been charged with violating the protective orders in favor of the mother, but he claimed that he was never found guilty of violating a protective order. Until the immigration service detained him in New Mexico, he had been incarcerated primarily in New York state. He had been arrested for assault in the third degree, shoplifting, unauthorized use of a motor vehicle, at least twice, and motor vehicle moving violations. The reasons for his arrests have never involved minor children. He was incarcerated for three months for the unauthorized use of a motor vehicle, three days for shoplifting, thirty days for assault in the third degree and eight months for violation of probation.

The father last saw his son when the child was three or four years old. According to the father, the child had a close relationship with the father's family, but the relationship ended in 2003. The father blamed the mother for getting a protective order against the father's sisters because she feared they would help the father take the child to Colombia. The father believes that the mother deliberately kept the child away from him for the past five years. The father stated that he “utilized a lot of court processes to find the mother and that even the New York court tried to help him.” He also claimed that he bought gifts and prayers for his son but that under the protective orders, he was not permitted to send them to the child. The father has used alcohol and drugs, including cocaine, crack and marijuana, and was once arrested for possession of illegal substances. He claimed that he never used alcohol prior to visiting the child. The father is aware that his son, whose given name is the same as the father's, wants to change his name.

Ryan E. Williams, a department employee, prepared the report requested of the department and testified at trial. At the time of trial, Williams had visited with the child fourteen times and spoken to him outside of the mother's presence. Williams had visited the home that the child shared with the mother and had spoken with the child's pediatrician, school personnel and therapist. Williams wrote in his report, which was admitted into evidence: “According to [the mother], she has relocated her residence often as a result of trying to avoid [the father's] unorthodox, erratic and threatening behaviors toward her.” The child's pediatrician reported that the child was in good health, and he had no concerns regarding the mother's ability to care for the child. School personnel reported that the child was a good student with no behavioral issues, and they had no concerns about the mother's ability to care for the child.

With respect to the child, Williams observed that the child “present[ed] as an engaging and articulate youngster who enjoys playing music, especially the violin. [The child] currently attends therapy in order to address issues concerning [the] father.” According to the child's therapist, in November, 2007, the child was afraid of the father and was “apprehensive about recalling memories of [the] father.” In the year that the child had been in therapy, the child had made progress overcoming anxiety about the father. The therapist thought that the child did not want to have contact with the father and that the child “sense[d][the] mother's anxieties about [the father].” Williams indicated that the therapist believed that termination of the father's parental rights would be in the child's best interest.

According to Williams, the child informed him that he had no ongoing relationship with the father and that because of the father's threats to the mother that made her afraid, the child did not want to have a relationship with the father. The child stated that he “would feel safer if he knew [the] father could have no involvement with [him] or [the] mother.” The child also told Williams that the father did not follow through with his promises and that the father missed many visits. The child also told Williams that he wanted to live with the mother to the exclusion of the father. The child and the father have the same first name, and the child wants to change his name so he will not be associated with the father.

With respect to the mother, Williams reported that she told him that the father had mentally and emotionally tormented her during their marriage and that she has been in counseling since 2001. The mother also is a client of the child's therapist, who described the mother “as a conscientious caretaker who has [the child's] ... health and well-being as her main priority.” The therapist told Williams that she did not believe that it was a good idea for the child to reestablish contact with the father.

Williams spoke to the father, who was incarcerated at Riker's Island Prison in New York, in November, 2007. The father stated that his marriage to the mother ended “as a result of his substance abuse and mental health issues.” According to Williams, the father “seemed to minimize the issues that caused the end of his marriage” and stated that the mother knew “the extent of my problem.” The father admitted that he had left the mother and child on weekends. The father also admitted that he had problems that may have led the mother to keep the child from him. The father said that he was “not an evil person” and that despite what he had done in the past, he would like to have a relationship with his son.

The department recommended that the father's parental rights be terminated. The recommendation was based on the fact that the father “has failed to...