Kezia M., In re

• Decision Date: 22 December 1993
• Docket Number: No. 11933,11933
• Citation: 33 Conn.App. 12,632 A.2d 1122
• Court: Connecticut Court of Appeals
• Parties: In re KEZIA M. *

Page 1122

632 A.2d 1122

33 Conn.App. 12

In re KEZIA M. ^*

No. 11933.

Appellate Court of Connecticut.

Argued Sept. 14, 1993.

Decided Oct. 15, 1993.

Certification Denied Dec. 22, 1993.

Mary Ann Barile, East Haven, for appellants (respondents).

Ann-Marie DeGraffenreidt, Asst. Atty. Gen., with whom, on the brief, was Richard Blumenthal, Atty. Gen., for appellee (petitioner).

Pauline E. Lybeck, Guilford, with whom, on the brief, was Gretchen Hellauer, Shelton, for minor child.

Before DALY, EDWARD Y. O'CONNELL and HEIMAN, JJ.

DALY, Judge.

This is an appeal by the respondent father and paternal grandmother ¹ from the judgment of the trial court terminating the father's parental rights with respect to his minor daughter, Kezia, pursuant to General Statutes § 17a-112(b)(1), (3) and (4). ²

On appeal, the respondents argue that the trial court improperly concluded (1) that there was sufficient evidence to support the termination order on the grounds set out in General Statutes § 17a-112(b)(1), (3) and (4), and (2) that the commissioner of the department of children and youth services (DCYS) had made reasonable efforts to unite Kezia with her father pursuant to General Statutes § 17a-112(d)(1). ³ We affirm the judgment of the trial court.

The following facts are pertinent to our resolution of this appeal. Kezia was born on February 9, 1987. She resided with her mother until November 3, 1987, when she was placed in foster care. On November 8, 1987, Kezia was found to have been neglected by her mother and was committed to the care and custody of DCYS. Since placement on November 3, 1987, Kezia has lived with her current foster parents. Her half sister, Tameika, also lives there.

On January 4, 1990, DCYS filed a petition seeking to terminate the mother's and father's parental rights, listing Phillip P. as Kezia's father. ⁴ Subsequently, the mother informed DCYS that Kenneth M. was in fact Kezia's father. On September 13, 1990, after court ordered blood tests had confirmed his paternity, Kenneth acknowledged his paternity of Kezia. At that time, a visitation schedule was arranged so that Kenneth and his mother, Mary M., could spend time with Kezia. In March, 1992, DCYS suspended their visitation rights when it decided that Kezia was not benefiting from these contacts.

On October 9, 1991, DCYS filed a petition seeking to terminate Kenneth's parental rights to Kezia. On November 6, 1991, Kenneth's mother intervened as an equitable party in interest for dispositional purposes. Hearings on the petition for termination were held on April 8, 13, and 30, and May 5, 1992. Kenneth failed to appear on April 8 and May 5. On May 5, 1992, the trial court granted Kenneth's motion to change the child's last name to his own. On October 23, 1992, the trial court found clear and convincing evidence to support the termination of Kenneth's parental rights to Kezia.

In its memorandum of decision, the trial court found that Kenneth's parental rights should be terminated on three of the four grounds specified in General Statutes § 17a-112(b), namely: (1) He had abandoned his child; (2) the child was denied, by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for her physical, educational, moral or emotional well-being; and (3) there was no ongoing parent-child relationship. The court further found that these conditions had existed for more than one year. The respondents, Kenneth and his mother, Mary, appeal from this judgment terminating Kenneth's parental rights as to Kezia.

The termination of parental rights is defined as "the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his parent...." General Statutes § 45a-707(g) (formerly § 45-61b[g]. " 'It is a most serious and sensitive judicial action. Anonymous v. Norton, 168 Conn. 421, 430, 362 A.2d 532, cert. denied, 423 U.S. 935, 96 S.Ct. 294, 46 L.Ed.2d 268 (1975).' ..." In re Michael M., 29 Conn.App. 112, 117-18, 614 A.2d 832 (1992). When petitioning to terminate parental rights without consent, DCYS must allege and prove by clear and convincing evidence, one or more of the specific grounds set forth in General Statutes § 17a-112(b). In re Baby Girl B., 224 Conn. 263, 293, 618 A.2d 1 (1992); In re Juvenile Appeal (Anonymous), 177 Conn. 648, 671, 420 A.2d 875 (1979); In re Michael M., supra, 29 Conn.App. at 118, 614 A.2d 832. "The same evidence certainly can establish more than one ground for termination." In re Shannon S., 41 Conn.Sup. 145, 157, 562 A.2d 79, aff'd, 19 Conn.App. 20, 560 A.2d 993 (1989).

"On appeal, our function is to determine whether the trial court's conclusion was legally correct and factually supported." In re Michael M., supra, 29 Conn.App. at 121, 614 A.2d 832; In re Megan M., 24 Conn.App. 338, 342, 588 A.2d 239 (1991); In re Davon M., 16 Conn.App. 693, 696, 548 A.2d 1350 (1988). We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached; Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 222, 435 A.2d 24 (1980); nor do we retry the case or pass upon the credibility of the witnesses. In re Christine F., 6 Conn.App. 360, 366-67, 505 A.2d 734, cert. denied, 199 Conn. 808, 809, 508 A.2d 769, 770 (1986). Rather, on review by this court every reasonable presumption is made in favor of the trial court's ruling. State v. Jones, 205 Conn. 638, 660, 534 A.2d 1199 (1987).

I

To prevail, the respondents must successfully challenge all three of the bases of the judgment terminating Kenneth's parental rights. If any of the grounds relied on by the trial court are upheld on appeal, the termination of parental rights must stand. In re Juvenile Appeal (84-BC), 194 Conn. 252, 258, 479 A.2d 1204 (1984); In re Kelly S., 29 Conn.App. 600, 613, 616 A.2d 1161 (1992). We conclude that two of the three grounds supporting the determination can be sustained. Accordingly, we uphold the trial court's decision to terminate Kenneth's parental rights.

A

The respondents first claim that the trial court improperly determined that Kenneth had abandoned Kezia. We disagree.

Abandonment focuses on the parent's conduct. In re Michael M., supra; In re Rayna M., 13 Conn.App. 23, 36, 534 A.2d 897 (1987). A lack of interest in the child is not the sole criterion in determining abandonment. In re Michael M., supra; In re Rayna M., supra, at 37, 534 A.2d at 897. General Statutes § 17a-112(b)(1) defines abandonment as the "fail[ure] to maintain a reasonable degree of 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. In re Luke G., 40 Conn.Sup. 316, 323, 498 A.2d 1054 (1985)." (Internal quotation marks omitted.) In re Michael M., supra. Abandonment occurs where a parent fails to visit a child, does not display love or affection for the child, does not personally interact with the child, and demonstrates no concern for the child's welfare. In re Juvenile Appeal (Docket No. 9489), 183 Conn. 11, 14, 438 A.2d 801 (1981).

Section 17a-112(b)(1) does not contemplate a sporadic showing of the indicia of interest, concern or responsibility for the welfare of a child. "A parent must maintain a reasonable degree of interest in the welfare of his or her child. Maintain implies a continuing, reasonable degree of concern." (Internal quotation marks omitted.) In re Michael M., supra; In re Rayna M., supra, 13 Conn.App. at 37-38, 534 A.2d 897; In re Migdalia M., 6 Conn.App. 194, 208-209, 504 A.2d 533, cert. denied, 199 Conn. 809, 508 A.2d 770 (1986).

" 'The commonly understood general obligations of parenthood entail these minimum attributes: (1) express love and affection for the child; (2) express personal concern over the health, education and general well-being of the child; (3) the duty to supply the necessary food, clothing, and medical care; (4) the duty to provide an adequate domicile; and (5) the duty to furnish social and religious guidance.' " In re Juvenile Appeal (Docket No. 9489), supra, 183 Conn. at 15, 438 A.2d 801 quoting In re Adoption of Webb, 14 Wash.App. 651, 657, 544 P.2d 130 (1975).

The trial court found that Kenneth has four children by three different mothers. He has not been married nor has he been regularly employed. He lives from one third to one half of the year at his mother's house where one of his daughters permanently resides; his stays there are sporadic. Kenneth has never suggested that he would ever serve as Kezia's primary caretaker. He has expressed no desire to provide a home of his own for his children. Although his chief concern is that Kezia know he is her father, he has visited her on only ten occasions in the two years since he acknowledged paternity.

The trial court found clear and convincing evidence that Kenneth had abandoned Kezia. In light of the facts found and Kenneth's course of conduct, it is apparent that he manifested no reasonable degree of interest, concern or responsibility for Kezia's welfare. We conclude that the findings of subordinate facts amply support the conclusion reached on the issue of abandonment and that no erroneous rule of law was applied by the trial court. The trial court properly concluded that Kenneth had abandoned his child as defined in § 17a-112(b)(1).

B

The respondents next claim that the trial court improperly concluded that DCYS had proved by clear and convincing evidence that Kenneth had denied Kezia the care necessary for her well-being. We agree.

General Statutes § 17a-112(b)(3) authorizes the termination of parental rights where "the child has been denied, by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for his [or her] physical, educational ...