IN RE TYQWANE

• Decision Date: 12 October 2004
• Docket Number: No. 24026.,24026.
• Court: Connecticut Court of Appeals
• Parties: In re TYQWANE V. et al.

857 A.2d 963

85 Conn.App. 528

In re TYQWANE V. et al.¹

No. 24026.

Appellate Court of Connecticut.

Argued March 25, 2004.

Decided October 12, 2004.

Raymond J. Rigat, Clinton, for the appellant (respondent mother).

Renee Bevacqua Bollier, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

WEST, McLACHLAN and HENNESSY, Js.

HENNESSY, J.

The respondent mother appeals from the judgments of the trial court terminating her parental rights as to her minor children, T and M.² On appeal, the respondent claims that the court improperly determined that (1) the termination of her parental rights was in the best interests of her children and (2) appellate review of a termination of parental rights proceeding pursuant to the clearly erroneous standard of review denies her adequate procedural safeguards. We affirm the judgments of the trial court.

In its memorandum of decision, the court found the following facts. The children, T and M, were born in November, 1993, and April, 1998, respectively. On March 25, 1997, after allegations that T was in immediate physical danger from his surroundings, the commissioner applied for an order of temporary custody, which was granted. A concomitant neglect petition was filed by the petitioner, the commissioner of children and families (commissioner), alleging that T was neglected in that the child was (1) being permitted to live under conditions, circumstances or associations injurious to his well-being and (2) abused in that he had a condition that was the result of maltreatment such as, but not limited to, malnutrition, sexual molestation or exploitation, deprivation of necessities, emotional maltreatment or cruel punishment.

On January 7, 1998, the respondent entered a plea of nolo contendere to an allegation of neglect in that T was denied proper care and attention. The commissioner withdrew all other allegations. The respondent was canvassed, and the plea was accepted by the court. The disposition provided for T's commitment to the commissioner from January 7, 1998, to January 7, 1999. The court also set forth written expectations for the respondent to regain custody, which the respondent signed. On December 7, 1998, the commitment was extended from January 7, 1999, to January 7, 2000. On February 26, 1999, T was returned to the respondent's care while committed to the commissioner because the respondent had complied with the court's expectations. On March 10, 1999, the commissioner filed a motion to modify the disposition from commitment to protective supervision. On March 17, 1999, the motion was granted and protective supervision was ordered to remain in effect through September 17, 1999. The respondent agreed in writing to the specific steps required to achieve reunification.

On July 10, 1999, a ninety-six hour hold was invoked on T and M. On July 14, 1999, after an allegation that both children were in immediate physical danger from their surroundings, an order of temporary custody was applied for and granted by the court. A concomitant neglect petition was filed, alleging that M was neglected in that he was (1) abandoned, (2) denied proper care and attention, physically, educationally, emotionally or morally and (3) being permitted to live under conditions, circumstances or associations injurious to his well-being. On August 16, 1999 the orders of temporary custody were affirmed and protective supervision of T was extended until further order of the court.³

On October 21, 1999, the respondent entered an admission on the neglect allegations concerning M. The plea was accepted by the court. The disposition resulted in M's commitment to the commissioner from October 21, 1999, to October 21, 2000.⁴ The respondent then signed, and the court approved, future expectations. In addition, T's commitment also was modified from protective supervision to commitment to the custody and care of the commissioner for a period not to exceed one year.

On August 15, 2000, the commitment of the children was extended from October 21, 2000, to October 21, 2001, and the permanency plan of reunification was approved. On September 18, 2001, the commitment of the children was extended from October 21, 2001, to October 21, 2002. The court also found that the permanency plan or reunification concerning the respondent was appropriate, while efforts to reunify T with his father were not appropriate. In addition, the court approved modified expectations to which the respondent agreed.

On May 2, 2002, the commissioner filed petitions seeking to terminate the parental rights of the respondent as to both children.⁵ The commissioner, pursuant to General Statutes § 17a-112, alleged three grounds for terminating the respondent's parental rights: (1) that the children were abandoned in that the respondent failed to maintain a reasonable degree of interest, concern or responsibility as to their welfare, (2) that the children had been found in a prior proceeding to have been neglected or uncared for and had been in the custody of the commissioner for at least fifteen months, and that the respondent, though provided with the specific steps necessary to facilitate their return, failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of both children, she could assume a responsible position in their lives and (3) that there is no ongoing parent-child relationship between each child and the respondent. On October 22, 2002, the termination hearing commenced. The commissioner, however, pursued termination only on the ground that the respondent had failed to achieve the requisite degree of personal rehabilitation. The hearing resumed on October 30, 2002, and closing arguments were made on November 19, 2002.

In the adjudicatory phase, the court found by clear and convincing evidence that "[the respondent] is the parent of children who have been found by the Superior Court to have been neglected, or uncared for in a prior proceeding and has failed to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of each child, she could assume a responsible position in the life of each child." See General Statutes § 17a-112 (j)(3)(B)(i) and (ii).

In the dispositional phase of the proceedings, the court considered and made written findings regarding the seven factors listed in § 17a-112(k). The court recognized that the respondent "has exercised, continues to exercise and will in the future exercise poor judgment in regard to her boys." The court further recognized that the respondent "takes no responsibility for anything that has happened." The court then determined, by clear and convincing evidence, that it was in the best interests of the children that the respondent's parental rights be terminated. This appeal followed.

I

The respondent first claims that the court improperly determined that termination of her parental rights was in the best interests of her children. She claims that her parental rights should not be terminated because a very strong bond exists between herself and the children, the psychological parent is unwilling to adopt the children, adoption is unlikely given their extreme emotional and behavioral problems and termination is inimical to their best interests insofar as they will permanently and irretrievably lose their only connection to a parent. We disagree.

"A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition.... In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights [under § 17a-112(j)] exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best [interest] of the child." (Internal quotation marks omitted.) In re Kristy A., 83 Conn.App. 298, 306, 848 A.2d 1276 (2004).

"The standard of review on appeal [from a termination of parental rights] is whether the challenged findings are clearly erroneous.... The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous." (Internal quotation marks omitted.) In re Jennifer W., 75 Conn.App. 485, 492-93, 816 A.2d 697, cert. denied, 263 Conn. at 917, 821 A.2d 770 (2003).

"It is important to note at the outset of our analysis that in considering the evidence, we do not necessarily analyze the claim in terms of what is best for the children. Specific statutory standards necessary for termination must be met to justify termination. Consideration of the best interest of the child comes after a determination that termination is warranted." In re Alexander T., 81 Conn.App. 668, 677, 841 A.2d 274, cert. denied, 268 Conn. 924, 848 A.2d 472 (2004). In addition, "the best interest of a child is not the [court's] primary focus when determining whether to grant a petition to terminate parental rights.... [C]oncern for the children is an additional, not an alternative, requirement for the termination of parental rights." (Citation omitted.) Id., at 674 n. 8, 841 A.2d 274.

In its analysis during the dispositional phase of the proceedings, the court found that all seven statutory criteria weighed in favor of terminating the respondent's parental rights. Moreover, it found by clear and convincing evidence that it was in the children's best interests to terminate the respondent's parental rights. In its memorandum of decision, the court made the following findings. The...