In re Madison C.

• Citation: 241 A.3d 756,201 Conn.App. 184
• Decision Date: 29 October 2020
• Docket Number: AC 43721
• Court: Appellate Court of Connecticut
• Parties: IN RE MADISON C. et al.

201 Conn.App. 184

241 A.3d 756

IN RE MADISON C. et al.^*

AC 43721

Appellate Court of Connecticut.

Argued September 9, 2020

Officially released October 29, 2020^**

Albert J. Oneto IV, assigned counsel, for the appellant (respondent mother).

Alina Bricklin-Goldstein, assistant attorney general, with whom, on the brief, were William Tong, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).

Bright, C.J., and Suarez and Lavery, Js.

SUAREZ, J.

The respondent mother, Patricia K., appeals from the judgments of the trial court rendered in favor of the petitioner, the Commissioner of Children and Families, terminating her parental rights with respect to each of her three minor children on the ground that the respondent failed to achieve a sufficient degree of personal rehabilitation pursuant to General Statutes § 17a-112 (j) (3) (B) (i).¹ On appeal, the respondent claims that the court deprived her of her substantive due process rights as guaranteed by the fourteenth amendment to the United States constitution because termination of her parental rights was not the least restrictive means necessary to ensure the state's compelling interest in protecting the best interests of the children. As part of her claim, the respondent further asserts that the record disclosed that narrower means other than termination were available to protect the children from harm and afford them statutory permanency. We conclude that the record was inadequate to review the respondent's constitutional claim, and, accordingly, we affirm the judgments of the trial court.

The following facts, as found by the court, and procedural history are relevant to the claim raised on appeal. Madison, Ryan, and Andrew were born to the respondent and their father, Chester C. The Department of Children and Families (department) became involved with the family in November, 2013, when Madison tested positive for marijuana and methadone

upon her birth. Upon discharge from the hospital, Madison was released into the care of her parents. In December, 2015, the respondent gave birth to Ryan, who also tested positive for marijuana and methadone. Ryan subsequently was released from the hospital to the care of his parents.

On April 25, 2017, the Plymouth Police Department responded to reports of a domestic dispute between the respondent and Chester C. The Plymouth police found the couple's home in deplorable condition and located drug paraphernalia inside the home. On May 2, 2017, Madison and Ryan were removed from their parents’ home, pursuant to an order of temporary custody filed by the petitioner and granted by the court. The children were placed in a licensed, nonrelative foster home. The petitioner also filed a neglect petition alleging that the children were being permitted to live under conditions, circumstances, or associations injurious to their well-being. The order of temporary custody was sustained by agreement of the parties on May 12, 2017.

In November, 2017, the respondent gave birth to Andrew, who tested positive for marijuana, methadone, and cocaine. On November 20, 2017, the court granted an order of temporary custody as to Andrew, and he was placed in his current, nonrelative foster family upon discharge from the hospital. On the same date, the petitioner filed a neglect petition as to Andrew on the basis of predictive neglect.

The neglect petitions with respect to all three children were consolidated on November 30, 2017. The court adjudicated the children neglected and committed the children to the care and custody of the petitioner until further order by the court. On the same date, the court ordered specific steps with which the parents were required to comply.

On February 1, 2019, the petitioner filed termination of parental rights petitions with respect to the parental rights of the respondent and Chester C. as to their three children on the grounds that the court in the prior proceeding found the children to have been neglected, and they had failed to achieve the degree of personal rehabilitation that would encourage the belief that, within a reasonable time and considering the ages and needs of the children, they could assume a responsible position in their children's lives.

The respondent has a long history of substance abuse, specifically with heroin, and has been on methadone maintenance

intermittently since 2012. The department reported that "[h]er success in treatment has oscillated, with periods of sobriety interrupted by intense relapses."

The respondent's substance abuse issues have led to numerous interactions with the criminal justice system. In April, 2017, the respondent was arrested and charged with risk of injury to a child in connection with the incident that led to the removal of Madison and Ryan. In July, 2018, the respondent was arrested for stealing a generator from Home Depot and later charged with fifth degree larceny. On July 17, 2018, she was arrested and later charged with driving with a suspended license and other motor vehicle charges. On October 18, 2018, due to possessing hypodermic needles and crack pipes, the respondent was arrested and later charged with, inter alia, possession of drug paraphernalia, possession of cocaine and five bags of heroin, and operating a motor vehicle with a suspended license. On March 10, 2019, the respondent was arrested and charged with breach of the peace. She also has a history of not appearing in court and has resultant failure to appear charges. During the underlying termination of parental rights trial, the respondent was incarcerated as a result of the April, 2017 arrest for risk of injury to a minor, having been sentenced on April 17, 2019, to seven years of incarceration, execution suspended after eighteen months, and three years of probation.

A trial was held on August 5, 6, 7, and 16, 2019. The petitioner called three witnesses and entered seventeen exhibits into evidence. The respondent did not call any witnesses and did not introduce any exhibits.

On August 16, the petitioner withdrew its termination petitions as to Chester C.

On November 8, 2019, the court, in a thorough memorandum of decision, granted the termination petitions as to the respondent. In the adjudicatory phase of the trial, the court found, by clear and convincing evidence, that the department made reasonable efforts to reunify the respondent with the children pursuant to § 17a-112 (j) (1), and that she remained unwilling or unable to benefit from services. The court based its decision on the respondent's failure to follow through with the specific steps that were agreed upon and ordered by the court, along with her unwillingness or inability to maintain her sobriety.

The court further found, by clear and convincing evidence, that the respondent had not and will not achieve the degree of personal rehabilitation that would encourage the belief that within a reasonable time, considering the ages and needs of all three children, she could assume a responsible position in their lives. The court stated that the petitioner remained unable to be an appropriate caretaker for the children and that there was no evidence or reason to believe that she would be able to assume a responsible position in the children's lives within a reasonable time.

In the dispositional phase, the court made findings on the seven criteria set out in § 17a-112 (k) as to the best interests of the children. The court examined the relevant factors related to the children's development, mental and emotional health, safety, long-term stability, their relationship with their respective foster parents, and their relationship with the petitioner. The court noted that the respondent had not successfully taken advantage of or complied with the services provided by the department and had not shown a willingness or ability to provide a safe and nurturing environment in which she appropriately could parent the children. Additionally, the court found that there was credible evidence to suggest that the "toxic relationship between the parents and [the] respondent's overbearing and manipulative behavior toward [Chester C.] is an impediment to [Chester C.’s] effective parenting of the children." This appeal followed. Additional facts and procedural history will be set forth as necessary.

On appeal, the respondent does not challenge the trial court's adjudicatory findings. Rather, she claims that the court deprived her of her substantive due process rights as guaranteed by the fourteenth amendment to the United States constitution because termination of her parental rights was not the least restrictive means necessary to ensure the state's compelling interests in protecting the best interests of the children. The respondent argues that narrower means, other than termination, were available to protect the children from harm and afford them statutory permanency. She concedes that this claim of constitutional error was not presented at trial. Accordingly, she seeks review under the bypass doctrine codified in State v. Golding , 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R. , 317 Conn. 773, 781, 120 A.3d 1188 (2015). The petitioner responds that the record is inadequate for review of the claim. We agree with the petitioner.

"Under Golding , a [party] can prevail on a claim of constitutional error not preserved at trial only if the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation ... exists and ... deprived the [party] of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the [party's] claim will fail. The appellate tribunal is free, therefore, to...