In re Kachainy C., (AC 21208)

• Court: Appellate Court of Connecticut
• Writing for the Court: LANDAU, J.
• Citation: 787 A.2d 592,67 Conn. App. 401
• Parties: IN RE KACHAINY C.
• Docket Number: (AC 21208)
• Decision Date: 25 December 2001

67 Conn. App. 401
787 A.2d 592

IN RE KACHAINY C.¹

(AC 21208)

Appellate Court of Connecticut.

Argued September 14, 2001.

Officially released December 25, 2001.

Landau, Mihalakos and Freedman, Js.

67 Conn. App. 402

Bradford J. Chaucer, with whom was William R. Kinloch, for the appellant (respondent mother)

Mary K. Lenehan, 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

LANDAU, J.

The respondent mother appeals from the judgment of the trial court terminating her parental rights with respect to her daughter.² On appeal, the respondent claims that the court improperly (1) concluded that when adjudicating a petition for termination of parental rights pursuant to General Statutes (Rev. to 1999) § 17a-112 (c) (1),³ the court is not required to

67 Conn. App. 403

find by clear and convincing evidence that the department of children and families (department) made reasonable efforts to reunify the child and parent or that the parent is unwilling or unable to benefit from reunification services where the court previously made those findings pursuant to General Statutes § 17a-110 (b),⁴ and (2) found that the respondent failed to achieve personal rehabilitation within the meaning of General Statutes (Rev. to 1999) § 17a-112 (c) (3) (B).⁵ The respondent also claims that § 17a-110 is unconstitutional in that it permits the court to find a statutory ground for termination by less than clear and convincing evidence. We affirm the judgment of the trial court.⁶

In 1992, the trial court, DeMayo, J., adjudicated the child neglected and committed her to the protective custody of the petitioner, the commissioner of children and families (commissioner), pursuant to General Statutes § 46b-120, because the child was being denied proper care and attention, specifically, because the respondent was unable to provide the care that the medically fragile child required. The commissioner's temporary custody was extended repeatedly. In August, 1999, the commissioner filed a petition to terminate the

67 Conn. App. 404

parental rights of the respondent with respect to the child on the ground that the respondent had failed to achieve such a degree of personal rehabilitation as to encourage a belief that she would be able to assume a responsible position in the child's life within a reasonable time. See General Statutes (Rev. to 1999) § 17a-112 (c) (3) (B). The commissioner also alleged that there was no ongoing parent-child relationship that ordinarily develops as a result of a parent having met, on a continuing basis, the physical, emotional, moral or educational needs of the child and that to allow further time for the establishment or reestablishment of such a relationship would be detrimental to the best interest of the child. See General Statutes (Rev. to 1999) § 17a-112 (c) (3) (D). Additional procedural facts will be set forth as necessary

In adjudicating the termination petition, the court, Rogers, J., found the following facts by clear and convincing evidence. The child was born in 1990 with a chronic, life threatening illness. As a result of her illness, the child has a significant life threatening lung disease. Over the years, physicians frequently changed the medications used to treat this disease because the child's immune system would respond to the treatment erratically. To this day, the child's health remains fragile and must be regulated and monitored closely to prevent its further deterioration. At the time of the termination hearing, the child was taking five medications several times a day. She was also taking three additional medications on an as-needed basis. During the summer, she often suffers respiratory distress and must use a nebulizer, sometimes as often as four times a day.

The respondent began to receive support services administered through the Yale Child Study Center in 1991. The patient care manager who worked with the respondent found that the respondent was unable to recognize the child's symptoms of illness, to administer

67 Conn. App. 405

medications regularly or to contact the hospital when the child was ill. Consequently, the commissioner filed a neglect petition. The child was eighteen months old in 1992 when she was placed in the commissioner's protective care. At that time, she had severe developmental delays, was grossly underweight and had been hospitalized on numerous occasions

Since that time, the child has resided in a foster home, where her foster mother provides her with exceptional care. The foster mother strictly complies with the child's medical regime, regularly attends the medical clinic and is able to recognize symptoms of illness and to communicate with medical providers. The child considers her foster mother to be her psychological parent. At the time of the termination hearing, the child was happy and had no significant emotional or behavioral problems. She referred to the respondent as her "other mom."

When the child was in the commissioner's protective custody, the respondent was aware that she was welcome to participate in the child's medical treatment at Yale. She, however, missed a majority of the child's medical appointments between 1992 and 2000. In 1998, she began to receive notice of appointments in Spanish, her native tongue. It was important for the respondent to attend the child's medical appointments, not only to spend time with the child, but also to learn how to care for her. The child's nurse practitioner testified unequivocally and credibly that the respondent cannot adequately care for the child.

The child's medical providers indicated that it was essential for the respondent to visit regularly with the child so that she could utilize her training with respect to the child's medical needs. The respondent visited the child inconsistently despite the fact that the visits were allowed to take place in the respondent's home.

67 Conn. App. 406

In May, 1995, the department offered the respondent the opportunity to increase her visits with the child from once to twice a week. Because the respondent failed to attend the additional visits consistently, the department canceled the additional visits in January, 1996. Between June, 1996, and October, 1999, the respondent visited the child only fifty-two out of a possible 110 times. In June, 1998, the respondent was referred to the New Haven Family Alliance for intensive preservation services, but the case was closed one month later when the respondent missed three out of four appointments

In a memorandum of decision dated July 26, 2000, Judge Rogers granted the petition to terminate the respondent's parental rights with respect to her child, concluding that she had failed to achieve personal rehabilitation.⁷ The respondent appealed.

As we turn to address the respondent's claims, we are mindful of the gravity of the proceedings in a termination of parental rights case. Our statutes define "the termination of parental rights as the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his or her parent. It is, accordingly, a most serious and sensitive judicial action. Anonymous v. Norton, 168 Conn. 421, 430, 362 A.2d 532, cert. denied, 423 U.S. 935, 96 S. Ct. 294, 46 L. Ed. 2d 268 (1975). Although the severance of the parent-child relationship may be required under some circumstances, the United States Supreme Court has repeatedly held that the interest of parents in their children is a fundamental constitutional right that undeniably warrants deference and, absent a powerful countervailing interest, protection. Stanley v.

67 Conn. App. 407

Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); see also In re Juvenile Appeal (83-CD), 189 Conn. 276, 295, 455 A.2d 1313 (1983)...." (Internal quotation marks omitted.) In re Eden F., 48 Conn. App. 290, 306-307, 710 A.2d 771 (1998), rev'd on other grounds, 250 Conn. 674, 741 A.2d 873 (1999).

I

The respondent's first claim is that the court improperly concluded that when adjudicating a petition for termination of parental rights, § 17a-112 (c) (1) does not require the court to find by clear and convincing evidence that the department made reasonable efforts to reunify the child and parent or that the parent is unwilling or unable to benefit from reunification services, where the court previously made those findings in a hearing held pursuant to § 17a-110.⁸ In response to this claim, the petitioner argues that the issue is moot. Although we conclude that the claim is not moot, the respondent's claim lacks merit.

A

"Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties.... Since mootness implicates subject matter jurisdiction ... it can be raised at any stage of the proceedings.... A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists.... An issue is

67 Conn. App. 408

moot when the court can no longer grant any...