In Re Shane P.

• Decision Date: 13 June 2000
• Docket Number: No. AC,AC
• Court: Connecticut Court of Appeals
• Parties: (Conn.App 2000) IN RE SHANE P. 19430

754 A.2d 169 (Conn.App 2000)

IN RE SHANE P.

No. AC 19430

THE COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued January 18

June 13, 2000

Raymond J. Rigat, for the appellant (respondent father). 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). David T. Stone, for the minor child.

O'Connell C. J., and Lavery and Landau, Js. ¹

Lavery, J.

OPINION

The respondent father ² appeals from the judgment of the trial court terminating his parental rights with respect to his minor child, Shane P. He claims that (1) the court's finding that he abandoned Shane constituted an unconstitutional deprivation of due process, (2) the court improperly found that he failed to achieve sufficient personal rehabilitation, (3) the statutory grounds of abandonment and failure to achieve rehabilitation pursuant to General Statutes (Rev. to 1997) §§ 17a-112, as bases for the termination of parental rights, are unconstitutionally vague as applied to him, (4) the court's finding of abandonment violated the double jeopardy clause of the fifth amendment to the United States constitution and (5) the termination of his parental rights constituted a violation of due process. We affirm the judgment of the trial court.

In a memorandum of decision, filed February 4, 1999, the court found the following facts. The respondent dropped out of high school and developed a drug and alcohol habit. He married Shane's mother in 1986, and couple in 1988 had their first child, B. The respondent introduced his wife to drugs, and she also became addicted. In 1991, after a series of arrests, the respondent and his wife put B in the care of his maternal grandparents, where he has remained. Despite their inability to care for B, the respondent and his wife in 1992 had another son, J. Two years later, the respondent and his wife left J with his maternal grandparents as a result of the persistent marital, drug and criminal justice problems the respondent and his wife experienced.

Shane was born prematurely on July 31, 1995, with a positive toxicity for opiates and went through withdrawal. The presence of drugs in Shane may have been due to his mother's methadone treatment, although she admitted to using cocaine early in her pregnancy.

On October 3, 1995, with his wife, Shane and J in a car with him on a dirt road, the respondent smoked rock cocaine and then assaulted police officers who came to the scene. Cocaine and baby formula were found in the car. As a result, the respondent was convicted of multiple counts of risk of injury to a child, possession of narcotics and assault on a police officer. Due to the severity of the incident, as well as his lengthy criminal record, which included eight prior felony convictions, violation of probation and numerous misdemeanors, the respondent received a total effective sentence of ten years, suspended after five years in prison, and five years of probation. He remains in prison with a maximum release date of October, 2000. The respondent's wife was convicted of risk of injury to a child and received a suspended sentence. Subsequently, however, in connection with an unrelated incident, she was convicted of robbery, risk of injury to a minor and assault in the second degree for which she received a total effective sentence of seven years incarceration. Her maximum release date is June, 2004.

On the basis of the October, 1995, incident, the commissioner of children and families (commissioner) obtained an order of temporary custody for J and Shane. The commissioner placed the boys in a foster home, ³ where Shane has remained. On June 10, 1996, the court adjudicated Shane neglected. The court has extended his commitment to the commissioner until June 10, 2000.

From birth, Shane has had special needs. In the first several months of his life, Shane exhibited severe back arching, body tremors, unusual screaming and difficulty keeping down his formula. At twenty-two months, Shane was diagnosed with developmental weaknesses and inconsistencies in the areas of language development, neuromotor functions, behavioral control and possible learning disability. Through the hard work of his foster mother, Shane was placed in a newly created special education program. Although Shane has improved in many areas, he still has frustration problems, oral motor difficulties and is prone to choking.

Shane's foster mother is devoted to him and devotes considerable energy to his development. A pediatrician and psychologist who testified at the respondent's trial complimented the foster mother as committed and understanding. Complaints by the respondent's wife regarding the foster mother's care were investigated and shown to be unsubstantiated. Shane's foster parents love him and would like to adopt him. Shane is quite comfortable and is thriving in his foster environment. Shane refers to the other boys in the foster household as his brothers. He refers to his biological brothers, B and J, as his friends. Shane refers to his foster parents as mommy and daddy. Shane does not look forward to visits with the respondent or his wife.

After his arrest in October, 1995, the respondent did not, until February, 1996, request that the department of children and families (department) facilitate a visit with Shane. Sporadic requests continued until August, 1997, when the respondent had his first prison visit with Shane. Delays in the department's response to the respondent's requests stemmed from the mixed signals he gave regarding his interest, as well as from the frequent turnover of department social workers assigned to the case. Another visit took place in October, 1997, but Shane was uncomfortable, and the respondent suggested that the visit end early. The respondent did not request more visits until March, 1998. The respondent has not sent Shane Christmas or birthday cards or presents. The respondent also admitted that Shane does not know him as a father. Indeed, Shane does not refer to the respondent as daddy or any similar term.

The court found by clear and convincing evidence that the respondent had abandoned Shane within the meaning of §§ 17a-112 (c) (3) (A) because the respondent had no contact with the child during a five month period between October, 1995, and February, 1996, and showed only sporadic interest in him thereafter. The court also found that for more than one year the respondent had failed to achieve sufficient personal rehabilitation, within the meaning of §§ 17a-112 (c) (3) (B), such that it is likely that within a reasonable time he could assume a position of responsibility in the child's life. The court then determined that it was in Shane's best interest to terminate the respondent's parental rights. Finally, the court denied a motion by the respondent's wife to transfer guardianship of Shane to his maternal grandparents. This appeal followed.

At the outset, we note our standard of review in termination of parental rights cases. "The standard for review on appeal [in a termination of parental rights case] is whether the challenged findings are 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." (Internal quotation marks omitted.) In re Alissa N., 56 Conn. App. 203, 207, 742 A.2d 415 (1999), cert. denied, 252 Conn. 932, 746 A.2d 791 (2000).

I.

A.

The respondent contends that the court's finding of abandonment was an unconstitutional deprivation of due process because five months of no contact with Shane does not constitute abandonment, and the failure of the department to arrange prison visitation was the main cause of the lack of contact. ⁴ Although the respondent in his brief does discuss his actions with regard to Shane, he provides no analysis in support of his allegation of a due process violation. Accordingly, this claim is inadequately briefed and we deem it abandoned. Latham & Associates, Inc. v. William Raveis Real Estate, Inc., 218 Conn. 297, 300, 589 A.2d 337 (1991); State v. Dumas, 54 Conn. App. 780, 794, 739 A.2d 1251, cert. denied, 252 Conn. 903, 743 A.2d 616 (1999).

What the respondent does brief is a challenge to the sufficiency of the evidence underlying the court's conclusion that clear and convincing evidence exists that he abandoned the child within the meaning of §§ 17a-112 (c) (3) (A).

"Abandonment focuses on the parent's conduct. It is a question of fact for the trial court which has the parties before it and is in the best position to analyze all of the factors which go into the ultimate conclusion that [the statutory standard of abandonment] has been satisfied." (Internal quotation marks omitted.) In re Drew R., 47 Conn. App. 124, 128, 702 A.2d 647 (1997).

"It is not lack of interest alone which is the criterion in determining abandonment. Abandonment under [§§ 17a-112 (c) (3) (A)] requires failure to maintain interest, concern or responsibility as to the welfare of the child. Attempts to achieve contact with a child, telephone calls, the sending of cards and gifts, and financial support are indicia of interest, concern or responsibility for the welfare of a child. . . . Where a parent fails to visit a child, fails to display any love or affection for the child, has no personal interaction with the child, and no concern for the child's welfare, statutory abandonment has occurred. . . . General Statutes [§§ 17a-112 (c) (3) (A)] does not contemplate a sporadic showing of the indicia of interest, concern or responsibility for the welfare...