In re North

• Decision Date: 27 July 2017
• Docket Number: (AC 39934).
• Citation: 167 A.3d 476,175 Conn.App. 307
• Court: Connecticut Court of Appeals
• Parties: IN RE LUIS N. et al.

175 Conn.App. 307

167 A.3d 476

IN RE LUIS N. et al.^*

(AC 39934).

Appellate Court of Connecticut.

Argued May 31, 2017

Officially released July 27, 2017^**

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

Frank H. LaMonaca, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Benjamin Zivyon, Hartford, assistant attorney general, for the appellee (petitioner).

Lavine, Prescott and Harper, Js.

LAVINE, J.

The respondent father, S.N., appeals from the judgments of the trial court terminating his parental rights in his son, L.N., and his daughter, M.N.¹ On appeal, the respondent claims that the judgments should be reversed because the court met with the children ex parte in the presence of a Department of Children and Families visitation supervisor, failed to make a record of its observations regarding the children, and failed to declare a mistrial. We affirm the judgments of the trial court.

I

AThe Termination Facts

In a 120 page memorandum of decision, the trial court, Rubinow, J. , made the following findings of fact that are relevant to the termination of parental rights petitions at issue in the present appeal. L.N. was born in July, 2008, and M.N. was born in June, 2009. They came to the attention of the Department of Children and Families (department), in February, 2011, when they were in the custody of their mother, B.F.,² who was overwhelmed by caring for them. The children remained in her custody until October 11, 2011, when the department removed them pursuant to General Statutes § 17a–101g. On October 21, 2011, the court, Hon. William L. Wollenberg , judge trial referee, sustained the orders of temporary custody in the petitioner, the Commissioner of Children and Families, and ordered specific steps for the respondent to aid in his reunification with the children.

On August 9, 2012, the court, Frazzini, J. , adjudicated the children neglected as to the respondent on the ground that they were exposed to conditions injurious to their well-being.³ Judge Frazzini ordered the children committed to the custody of the petitioner and issued new specific steps for the respondent to facilitate reunification. See General Statutes § 46b–129. On December 12, 2012, the petitioner filed petitions to terminate the respondent's parental rights in the children. In her amended petitions, the petitioner alleged that the department had made reasonable efforts to locate the respondent and to reunify him with the children, that the respondent was unable or unwilling to benefit from reasonable reunification efforts, that he had failed to achieve personal rehabilitation, and that termination of his parental rights in the children was in their best interests. The trial on the termination petitions was held on approximately sixteen days between November 24, 2014, and August 3, 2016. Judge Rubinow issued a memorandum of decision in which the respondent's parental rights in the children were terminated on November 15, 2016. The court, Olear, J. , granted the respondent's application for the appointment of appellate counsel and the waiver of fees. The respondent appealed.

Judge Rubinow made extensive findings of fact with regard to the respondent, which we summarize for the purposes of the present appeal. The respondent was born in 1981 and was graduated from high school. In 2011, he was employed at a car wash. The respondent had relatively simultaneous relationships with several women that resulted in the births of eight children, some of whom are only a few months apart in age.⁴ He is married to T.F., the mother of two of his children: S.N., Jr. (S Jr.) and Y.⁵

The court found that department personnel met with the respondent on numerous occasions, beginning in February, 2011,⁶ when the children were in B.F.'s custody. He agreed to work with the department and take care of the children on some weekends as a way of helping B.F. The department made in-home family preservation services available to the respondent from February through October, 2011, but he never availed himself of the services. In October, 2011, when the children were removed from B.F.'s custody, the respondent proposed that the children move into his parents' home. The department deemed the respondent's plan inappropriate; it involved too many people sharing too few bedrooms.⁷

Starting in October, 2011, the department provided the respondent with once a week, two hour supervised visits with the children. The department also provided him with behavioral health services to help him comply with his specific steps, in addition to a one-on-one fatherhood education program adjusted to meet his cognitive and reading limitations.⁸ In June, 2012, Bruce Freedman, a licensed psychologist, conducted a court-ordered psychological evaluation of the respondent, which included an observation of the respondent's interaction with the children.

The petitioner filed petitions to terminate the respondent's rights in both of the children on December 12, 2012. In November, 2013, the department decided not to pursue the termination petitions due to the positive feedback it had received from the agencies and individuals who were providing services to the respondent. Instead, the department planned to reunify the respondent with the children by February 10, 2014.⁹ The department, therefore, increased the amount of supervised visitation the respondent had with the children with a goal of ending supervision. At the time, L.N. was five years old and M.N. was four.

Prior to the planned reunification, the respondent was living in a two bedroom apartment with C, his oldest daughter. He planned to sleep in the living room while C and M.N. slept in one of the bedrooms, and L.N. slept in the other bedroom. Although the respondent and T.F. are married, they live apart during the week and spend weekends together along with C, S Jr., Y, and other children for whom T.F. was responsible.

Although the respondent wanted his children to live full time in the same household with T.F.'s children, he never obtained an apartment large enough to accommodate them all. Freedman conducted another court-ordered psychological evaluation, which again included an observation of the respondent's interaction with L.N. and M.N.

The department's reunification plan for the respondent was disrupted, however. In 2011, the respondent had secured employment as a school van driver. On December 10, 2013, the department received a complaint regarding the respondent's conduct while he was working as a school van driver. The department investigated and found that a seventh grader and a tenth grader had reported observing the respondent as he watched inappropriate images on his phone while the van was stopped. When the respondent noticed that the students were watching him, he "pulled his phone away." The respondent denied that he was "looking at porn," but admitted that he frequently looked at pictures of women in lingerie.¹⁰ Despite this incident, the department continued its reunification plan for the respondent.

The court found that the reunification plan was interrupted again on February 7, 2014, when M.N. disclosed that her half brother S Jr., who was six years old at the time, had sexually molested her. B.F. and M.N.'s foster mother both reported the alleged abuse to the department. The alleged abuse occurred in the respondent's apartment when he left M.N. and S Jr. unattended while he was in the bathroom, possibly showering. The court found that M.N. credibly had reported the details of the sexual abuse during therapy. S Jr. had sexually touched M.N.'s genitals, exposed his own genitals, and stated to M.N. that he wanted to "plug her" and have sex with her. The respondent was aware of M.N.'s accusations and discussed the matter with S Jr. Following the conversation, the respondent did not believe that S Jr. had committed the alleged sexual abuse or that he had made sexually suggestive comments to M.N.¹¹ The department personnel debated whether the respondent should be reunited with the children or the termination petitions should be pursued. In the fall of 2014, notwithstanding the parenting education and individual coaching that the respondent had received, the respondent lacked a concrete, viable plan to keep M.N. safe when she was visiting with any of his other children, including S Jr. In view of the circumstances, the department elected to forgo reunification and to proceed with the termination of parental rights petitions that had been filed in 2012.

In its memorandum of decision, the court set forth the elements of General Statutes § 17a–112 (j),¹² which the petitioner was required to prove by clear and convincing evidence in order to prevail on her petitions. The court found that the department had made reasonable efforts to maintain consistent contact with the respondent and had made reasonable reunification efforts for the respondent during the adjudicatory period¹³ and that the respondent was unable or unwilling to benefit from reunification efforts as contemplated by § 17a–112 (j) (1).¹⁴

The court further found by clear and convincing evidence that the respondent had failed to achieve such degree of personal rehabilitation as would encourage the belief that, within a reasonable time, considering the ages and specialized needs of the children, he could assume a responsible position in their lives. The court made specific findings of fact related to the statutory requirements.

In 2012, Freedman found that the respondent had significant difficulty interacting with L.N. and M.N., but by late 2013, the respondent's parenting techniques had improved considerably. The respondent, however, still showed some social avoidance, shyness, and insecurity in his reading skills. Freedman was more concerned, however, that the respondent had fathered many children, some of whom were exactly the same age, and the respondent did not know their birth dates. He also did not know...