In re Shane M.

• Citation: 84 A.3d 1265,148 Conn.App. 308
• Decision Date: 03 February 2014
• Docket Number: No. 35819.,35819.
• Court: Appellate Court of Connecticut
• Parties: In re SHANE M.

148 Conn.App. 308

84 A.3d 1265

In re SHANE M.^*

No. 35819.

Appellate Court of Connecticut.

Argued Nov. 14, 2013.

Decided Feb. 3, 2014.^**

Jon L. Schoenhorn, Hartford, CT, with whom was Irene J. Kim, for the appellant (respondent father).

Carolyn Signorelli, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).

Robert J. Moore, for the minor child.

ALVORD, BEAR and PELLEGRINO, Js.

PELLEGRINO, J.

The respondent father appeals from the judgment of the trial court terminating his parental rights with respect to his minor child, Shane M. ¹ On appeal, the respondent argues the court improperly (1) terminated his parental rights pursuant to General Statutes § 17a–112 (j) based on an overly broad interpretation of the statute; (2) terminated his parental rights based on insufficient evidence; (3) drew an adverse inference against the respondent without prior notice; and (4) terminated his parental rights because § 17a–112 (j)(3)(B) is unconstitutionally vague as applied to him. We conclude that the court did not err in granting the petition to terminate the respondent's parental rights, and affirm the judgment.

After a trial, at which the respondent was represented by counsel, the court in its well reasoned and comprehensive memorandum of decision detailed the following findings of fact and procedural history. The respondent is the biological father of Shane M., who was born on May 1, 2010. The petitioner, the Commissioner of Children and Families (commissioner), initially became involved with Shane shortly after he was born. The commissioner filed a petition of neglect on August 23, 2010, based in part on a domestic incident between Shane's mother and the respondent. The court granted the commissioner temporary custody of Shane on November 24, 2010, and the court issued initial specific steps to facilitate reunification on that date. On March 15, 2011, the respondent entered a plea of nolo contendere to the petition of neglect, and the court ordered final specific steps to facilitate the reunification of the respondent and Shane.²

The respondent's final specific steps included: (1) cooperate and keep appointments with the Department of Children and Families (department); (2) undergo individual counseling with the goal of addressing issues of depression and anger management; (3) undergo parenting counseling with the goals of learning appropriate child development and becoming a safe and nurturing parent; (4) cooperate with counseling recommendations regarding assessment and treatment; (5) submit to substance abuse evaluations, treatment, and random drug testing, with the time and method of testing at the discretion of the department; (6) refrain from drug and alcohol use; (7) avoid involvement with the criminal justice system; and (8) cooperate with court-ordered evaluations and testing. The commissioner filed a petition to terminate the respondent's parental rights on November 23, 2011.

The court considered the petition to terminate parental rights pursuant to § 17a–112 (j), noting the relevant issues were: (1) whether the department made reasonable efforts to reunite Shane and the respondent, or whether the respondent was unable or unwilling to benefit from reunification efforts; (2) whether the respondent, after being provided with specific steps, “failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time ... such parent could assume a responsible position in the life of [Shane]”; ³ and (3) whether termination of parental rights was in the best interests of Shane. After the court concluded that the department had made reasonable efforts to reunite Shane and the respondent,⁴ it considered whether the respondent, in light of the specific steps, achieved a sufficient degree of personal rehabilitation such that he could function as a responsible parent. The court detailed the following evidence.

The respondent underwent a clinical assessment at Radiance Innovative Services (Radiance).⁵ A Radiance therapist later recommended that the respondent pursue long term therapy and participate in a medication evaluation to determine if he needed to be treated with medication. The respondent, however, did not follow these recommendations, and missed multiple appointments with Radiance. The respondent indicated that he did not need these services because they were unnecessary. In March, 2012, Radiance reported that the respondent was “less focused” during individual counseling and that his counselor was concerned about the respondent's ability to parent in light of his anxiety. The respondent also completed a parenting program through Radiance and engaged in supervised visitation with Shane. A provider recommended a parenting mentor to help the respondent further develop his parenting skills. The respondent refused the additional assistance, claiming he did not need the mentor because he was fully capable of raising Shane.

The respondent attended individual counseling at Community Health Resources. The court found, however, that the respondent did not engage in counseling and was not fully committed to working on his individual issues. The respondent stated to his provider at Community Health Resources that he was only attending counseling to appease the department. On December 27, 2012, the program recommended no further treatment, despite the fact that the respondent continued to refuse to participate in medication evaluations.

The department also referred the respondent to the Non–Violence Alliance Program for domestic violence counseling. At this program, the respondent stated he did not need domestic violence counseling, as he was the victim. A different domestic violence program that the respondent attended reported that he tended to blame others for his problems.

In order to address concerns that the respondent had a substance abuse problem, the specific steps issued by the court included a prohibition on the use of drugs and alcohol, and directed the respondent to submit to random drug testing at the discretion of the department. After the final specific steps were issued, however, the respondent tested positive for marijuana use on four separate occasions.⁶ As a result, the respondent was referred to another provider for a substance abuse evaluation. He missed four appointments with this provider, and was discharged from the substance abuse treatment program. The respondent requested that he be referred to another program. At this second substance abuse program, the respondent failed an initial hair follicle drug test and refused to participate in group therapy. The respondent continued to refuse to submit to a hair follicle drug test after December, 2012, despite department requests that he do so.

As part of its determination regarding the respondent's degree of rehabilitation pursuant to § 17a–112 (j)(B), the court also relied upon the testimony of Derek Franklin, a clinical psychologist, whom the court found highly credible. Franklin recommended treatment for the respondent's psychological issues, as well as his substance abuse. Franklin emphasized the need to identify medication that could be helpful in managing the respondent's diagnoses. He specifically voiced his concerns over the respondent's failure to engage in substance abuse treatment, his reluctance to sufficiently address his ongoing anger issues, and his refusal to undergo a medication evaluation.

After considering the evidence, the court found that the respondent's level of rehabilitation “falls far short of that which would reasonably encourage the belief that at some future date [he] could assume a safe, reliable and responsible position in Shane's life given his age and needs.” Although the court recognized that the respondent complied with some steps, it ultimately found the respondent “fail[ed] to adequately address [his] substance abuse, mental health and domestic violence issues.” ⁷ The court found the respondent had not improved his ability to parent Shane.

The court, in its decision, noted that the respondent failed to acknowledge his personal issues that negatively affected his ability to parent. Specifically, the court highlighted the respondent's repeated assertions that he did not need any assistance with his parenting, substance abuse, or mental health issues, and his statement that he was engaging in services only to appease the department. The court stated it was “[m]ost concerning and troubling” that the respondent asserted that he no longer used marijuana, because this assertion was contradicted by the multiple failed drug tests and the respondent's refusal to take a hair follicle test. The court inferred that the refusal to take any additional drug tests was due to the fact that the respondent was still abusing illegal substances.⁸

The respondent's refusal to accept the services of a parenting mentor, refusal to participate in a medication evaluation, as well as his claims that he did not need assistance or abuse drugs, “clearly demonstrate[d] to the court that [the respondent] has not gained sufficient insight or acknowledgement of his ongoing issues and is, therefore, unable to put his son's interests before his own.... [The respondent's] continual refusal to cooperate with ... court ordered recommendations when doing so would aid in his effort to be reunited with his son, is deeply troubling.” The court then found that the department had proven, by clear and convincing evidence, that the respondent has not exhibited the requisite degree of personal rehabilitation to warrant reunification and, after considering the best interests of the child, the court terminated the respondent's parental rights with respect to Shane. The respondent filed a timely appeal.

I

“A hearing on a petition to terminate parental rights consists of two phases,...