In re Javon R.

• Decision Date: 02 November 2004
• Docket Number: No. 24247.,24247.
• Citation: 85 Conn.App. 765,858 A.2d 887
• Court: Connecticut Court of Appeals
• Parties: In re JAVON R.

858 A.2d 887

85 Conn.App. 765

In re JAVON R.¹

No. 24247.

Appellate Court of Connecticut.

Argued September 9, 2004.

Decided November 2, 2004.

Arnold V. Amore, for the appellant (respondent mother).

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

FOTI, DRANGINIS and FLYNN, Js.

FLYNN, J.

The respondent mother² appeals from the March 31, 2003 judgment of the trial court terminating her parental rights with respect to her son. On appeal, the respondent claims that (1) the court improperly found that the department of children and families (department) had made reasonable efforts to provide services to her to enable her to reunify with her son and (2) the department discriminated against her on the basis of her mental retardation, in violation of her rights to equal protection under the Connecticut constitution, by not providing enhanced services to enable her to reunite with the child. We affirm the judgment of the trial court.

The record reveals the following relevant procedural history and facts. The respondent is a forty year old woman with multiple diagnoses of mental retardation, mental illness and substance abuse. She also has had to resort to living in various shelters due to instances of domestic violence. The respondent is the mother of four children, three of whom previously were adjudicated neglected. The fourth child, who is the subject of this appeal, was born on January 25, 1999, while the respondent resided in a residential program that provides supervision and treatment for people with a dual diagnosis of mental illness and substance abuse. Shortly thereafter, the department received multiple reports from various service providers that the child was not being cared for properly by the respondent. In response to those reports, the commissioner of the department filed a petition on April 7, 1999, in the Superior Court, alleging that the child had been neglected, and the department offered and attempted to provide services to the respondent to help her with the child. Nevertheless, in May, 1999, after receiving more reports concerning the child's safety, the commissioner of the department invoked a ninety-six hour hold and applied for an order of temporary custody, which was granted by the court, Cohn, J., ex parte.

In the months and years that followed, the department made many attempts to provide additional services and resources to the respondent in an attempt to reunify her with her son. On August 7, 2001, however, the commissioner filed a petition for termination of parental rights. Acting on the commissioner's motion to review the permanency plan, the court, Conway, J., in a decision dated May 14, 2002, found by clear and convincing evidence that continued efforts to reunify the child with his mother were not appropriate and that it was in the child's best interest to maintain the commitment.³ The court also approved adoption as the goal of the permanency plan.⁴ The termination trial was held in June and September, 2002, and, the court, Lopez, J., issued its decision granting the petition to terminate the respondent's parental rights on March 31, 2003. This appeal followed.

"The standard of review on appeal [from a termination of parental rights] is whether the challenged findings are clearly erroneous.... The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous.... On appeal, our function is to determine whether the trial court's conclusion was legally correct and factually supported.... We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached ... nor do we retry the case or pass upon the credibility of the witnesses.... Rather, on review by this court every reasonable presumption is made in favor of the trial court's ruling." (Citations omitted; internal quotation marks omitted.) In re Clark K., 70 Conn. App. 665, 668-69, 799 A.2d 1099, cert. denied, 261 Conn. 925, 806 A.2d 1059 (2002).

"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.... In the dispositional phase of a termination of parental rights hearing, the trial court must determine whether it is established by clear and convincing evidence that the continuation of the parents' parental rights is not in the best interests of the child. In arriving at that decision, the court is mandated to consider and make written findings regarding seven factors delineated in General Statutes ... § [17a-112(k)] ...." (Internal quotation marks omitted.) In re Vanna A., 83 Conn.App. 17, 21-22, 847 A.2d 1073 (2004).

On appeal, the respondent claims that the court improperly concluded that the department had made reasonable efforts to provide services to her to assist with her efforts to reunify with the child. She also claims that the department discriminated against her on the basis of her mental retardation in violation of her rights to equal protection under the Connecticut constitution by not providing the necessary services to ensure her ability to reunite with the child. The commissioner argues, however, that the judgment of the trial court must be affirmed because the respondent failed to appeal from the court's earlier findings, contained in the permanency plan order and review, dated May 14, 2002, in which the court specifically found, by clear and convincing evidence, that continued efforts to reunify Jovan with his mother were not appropriate and that it was in the child's best interest to maintain the commitment.⁵ We agree with the commissioner.

"[A] decision following a hearing pursuant to § 46b-129(k), extending commitment and finding that further reunification efforts are not appropriate is an immediately appealable final judgment, and the issue of reunification cannot be raised as a collateral attack on a judgment terminating parental rights." In re Victoria B., 79 Conn.App. 245, 259 n. 15, 829 A.2d 855 (2003). "[A]n immediate appeal of [a court order of temporary custody] is the only reasonable method of ensuring that the important rights surrounding the parent-child relationship are adequately protected.... As [our Supreme Court] pointed out in [Madigan v. Madigan, 224 Conn. 749, 757 n. 9, 620 A.2d 1276 (1993)] several of our sister states have come to the same conclusion.... Accordingly, we conclude that, in order to protect the parent's interest in retaining custody of the child, an order [concerning] temporary custody is a final judgment for purposes of appeal. That reasoning means, moreover, that any party with standing to challenge that order by appeal must do so at that time." (Citations omitted; internal quotation marks omitted.) In re Shamika F., 256 Conn. 383, 404-405, 773...