In re Shane M. ( 2015 )

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IN RE SHANE M.*
(SC 19295)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued October 24, 2014—officially released August 28, 2015**
Jon L. Schoenhorn, 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 gen-
eral, and Benjamin Zivyon, assistant attorney general,
for the appellee (petitioner).
Joshua Michtom, assistant public defender, filed a
brief for the Office of the Chief Public Defender as
amicus curiae.
Opinion
ROGERS, C. J. The primary issue in this appeal is
whether the trial court properly relied on certain con-
duct of the respondent father, Matthew M. (respon-
dent), in granting the petition to terminate his parental
rights. The respondent appeals from the judgment of
the Appellate Court affirming the trial court’s decision
to terminate his parental rights as to his minor child,
Shane M., and to appoint the petitioner, the Commis-
sioner of Children and Families (commissioner), as stat-
utory parent. In re Shane M., 148 Conn. App. 308, 330,
84 A.3d 1265 (2014). The respondent claims that the
Appellate Court improperly affirmed the trial court’s
judgment terminating his parental rights pursuant to
General Statutes § 17a-112 (j) (3) (B)1 because the trial
court allegedly relied on conduct not within the scope
of the court-ordered specific steps when concluding
that the respondent failed to rehabilitate, that there was
insufficient evidence to support a finding that he had
failed to rehabilitate, and that the trial court unfairly
drew an adverse inference from his refusal to submit
to a drug test. We reject these claims and affirm the
judgment of the Appellate Court.
The following facts, which the trial court found by
clear and convincing evidence, and procedural history
are relevant to the resolution of this case. The respon-
dent is the biological father of Shane, who was one day
shy of his third birthday when the respondent’s parental
rights were terminated on April 30, 2013. Three days
after Shane was born, the Department of Children and
Families (department) responded to a report that
Shane’s mother2 was homeless and refused to check in
to a shelter. Approximately one month later, on June
8, 2010, police responded to a report of domestic abuse
between the respondent and Shane’s mother. The
respondent refused to give Shane’s car seat base to
Shane’s mother and physically moved her out of his
way. The respondent then got into his car, at which
point Shane’s mother jumped on top of the respondent’s
car. The respondent started to drive away and caused
Shane’s mother to fall to the ground. As a result of this
incident, both the respondent and Shane’s mother were
charged with breach of the peace and a protective order
was issued between the two.
On August 23, 2010, the commissioner filed a petition
of neglect based, in part, on the respondent’s history
of substance abuse, the history of violence between
the respondent and Shane’s mother and their recent
cohabitation despite four protective orders against their
doing so, the respondent’s unaddressed mental health
issues, and the fact that Shane was only three months
old at the time and was incapable of protecting himself
against violence. At that time, the department referred
the respondent to Radiance Innovative Services (Radi-
ance) for parenting education and to the Alcohol and
Drug Rehabilitation Center for substance abuse evalua-
tion and counseling.
The respondent participated in a clinical assessment
at Radiance on September 26, 2010. After that assess-
ment, he was diagnosed with ‘‘adjustment disorder with
mixed anxiety and depressed mood, [attention deficit
hyperactivity disorder] by history and cannabis abuse
by history.’’ Radiance staff recommended that the
respondent start long-term therapy to address symp-
toms of depression, anxiety, feelings of abandonment
by his mother, and past dysfunctional relationships.3
Two days later, the respondent went to the residence
of Shane’s mother and tried to break down the door
with a chair. As a result of that incident, he was arrested
for breach of the peace and trespassing, and a full pro-
tective order was issued against him.4
On November 16, 2010, due to the ongoing criminal
issues and arrests and domestic violence regarding the
respondent and Shane’s mother, the commissioner
invoked a ninety-six hour hold on behalf of Shane. Three
days later, the commissioner filed a motion for order
of temporary custody (order), which was granted and
subsequently sustained in a preliminary hearing on
November 24, 2010. At that hearing, the respondent
received and agreed to court-ordered specific steps to
facilitate reunification with Shane. The steps required
him, inter alia, to participate in parenting counseling
at Radiance to learn safe and nurturing parenting, and
individual counseling at North Central Counseling to
address issues of depression and anger management;
to submit to random drug screens with the time and
method of testing determined by the department; to
refrain from using illegal drugs or abusing alcohol or
medicine; to cooperate with court-ordered evaluations
or testing; to have no further involvement with the crim-
inal justice system; and to cooperate with service pro-
viders’ recommendations for parenting, individual and
family counseling, in-home support services and/or sub-
stance abuse assessment treatment.5
During the respondent’s initial Radiance sessions, he
was considered ‘‘very focused and actively involved in
the program,’’ and he completed an in-home father to
father program on December 28, 2010. He was then
referred to a nonviolence alliance program in January,
2011, to address issues of domestic violence. At that
program, the respondent reported that he ‘‘did not feel
that he was in need of domestic violence services and
stated that he was the victim in the relationship with
[Shane’s] mother.’’ In February, 2011, the respondent
was referred to services at Community Health
Resources for ‘‘psychiatric treatment and individual
counseling.’’ The report from the respondent’s psychiat-
ric evaluation indicated that the respondent ‘‘had no
past history of violence and . . . tried marijuana occa-
sionally and denie[d] being addicted.’’ The trial court
noted, however, that the information contained in the
report ‘‘appear[ed] to be self-reported by [the respon-
dent].’’ Notably, the report ‘‘[did] not indicate that any
independent sources were contacted nor that any medi-
cal records were reviewed by the evaluator.’’ The
respondent subsequently stated that he ‘‘did not want
to participate in services’’ and that he attended ‘‘only
. . . to appease [the department] . . . .’’
In March, 2011, the respondent pleaded nolo conten-
dere to the commissioner’s neglect petition, and the
trial court reiterated all but one of the specific steps
the respondent previously had been ordered to follow.
By this time, Shane had been in the commissioner’s
custody for five months.
The respondent’s Radiance sessions resumed in
April, 2011, but he missed several; when he did attend,
he continued to express that he did not need therapy
and presented with ‘‘a very high anxiety level and with
problems coping with stress.’’
In May, 2011, the respondent was arrested for posses-
sion of a controlled substance and for driving unreason-
ably fast. Following the arrest, which the respondent
did not report to the department, he tested positive for
marijuana on August 18, September 2, September 9
and September 16, 2011.6 As a result of these positive
screens, the respondent was referred to an Alcohol and
Drug Rehabilitation Center program. He was subse-
quently discharged from the program because he
missed three scheduled appointments starting in Octo-
ber, 2011, and subsequently tested positive for mari-
juana in a hair follicle drug screen.
Pursuant to General Statutes § 46b-129 (k) (1)7 and
Practice Book § 35a-14,8 which reflect the legislature’s
intent that committed children be provided with perma-
nency and stability, the department filed a motion to
review its proposed permanency plan for Shane. The
trial court approved the permanency plan of terminating
parental rights on September 27, 2011.9 At this point,
Shane had been in the commissioner’s custody for
ten months.
In November, 2011, the respondent was again
referred to participate in a parenting program. He con-
tinued to engage in supervised visits with Shane and
did a ‘‘good job parenting’’ but was ‘‘sometimes nervous
. . . .’’ His supervising social worker noted that the
respondent could benefit from additional parenting edu-
cation, because he tended to become hyperactive and
because he was limited by his attention deficit hyperac-
tivity disorder. A parenting mentor was also recom-
mended for the respondent as ‘‘he appeared to be
overwhelmed with handling the needs of an active tod-
dler and a baby10 but [he] refused, feeling he did not
need assistance with his parenting’’ and that he was fully
capable of raising Shane himself. (Footnote added.)
After the respondent had completed the domestic
violence group sessions and while he continued to
attend Radiance sessions, he was arrested for disor-
derly conduct on November 27, 2011. The respondent,
who had become upset with his grandfather while in
his grandfather’s home, went outside and returned with
a can of gasoline and began to pour it on the kitchen
floor. He then threatened to light the house on fire. He
reportedly also kicked the family dog repeatedly. After
this arrest, the court entered a protective order between
the respondent and his grandfather. On February 10,
2012, he was sentenced to three months in jail, execu-
tion suspended, and probation for one year.11
On November 23, 2011, the department petitioned
the court to terminate the respondent’s parental rights.
At this point, Shane had been in the commissioner’s
custody for thirteen months. Yolanda Leon, a depart-
ment social worker, submitted a social study in support
of the petition, opining that, ‘‘[s]ince the time of
[Shane’s] removal, [the respondent] has not adequately
addressed his mental health needs [or] substance abuse,
and has only recently begun to address domestic vio-
lence.’’ She noted that the respondent had not main-
tained contact with the department or informed it of
his living situation, but that he was employed full time.
In addition, Leon submitted that the respondent ‘‘con-
tinues to deny that he smoked marijuana and . . . does
not want to do a new substance abuse evaluation and
hair test, however [the respondent] stated he would
cooperate.’’
In February, 2012, the respondent again tested posi-
tive for marijuana. Over the next month, the respondent
showed ‘‘increased anxiety’’ and ‘‘was less focused dur-
ing his individual counseling’’ at Radiance. The next
three urine drug screens that the respondent took for
marijuana were negative.
After the respondent was discharged from the Alco-
hol and Drug Rehabilitation Center for failing to attend
three scheduled appointments, he asked to be referred
to another program for substance abuse and mental
health. He arrived late to his first evaluation, however,
and could not be evaluated. He then requested to be
referred to an agency closer to his home and began a
program at Community Health Resources on June 13,
2012. In the same month, the respondent tested positive
for marijuana in a hair follicle drug screen. Thereafter,
he was recommended for group therapy but ‘‘refused
to participate.’’ At this point, Shane had been in the
commissioner’s custody for seventeen months.
Derek A. Franklin, a licensed clinical psychologist,
conducted a court-ordered evaluation of the respondent
in September, 2012. He diagnosed the respondent with
attention deficit hyperactivity disorder, generalized
anxiety disorder and cannabis abuse and antisocial
traits. He posited that the respondent had a high poten-
tial for relapse, continued use or craving for cannabis
that needed to be monitored and addressed. Clinical
testing indicated that the respondent presented eleva-
tions in the domains of ‘‘[attention deficit hyperactivity
disorder], anxiety, paranoia, substance abuse, and anti-
social [traits] and aggression.’’ Franklin described the
respondent as ‘‘future oriented and optimistic,’’ but he
also saw ‘‘sufficient evidence of mood dysregulation
exacerbated by anxiety.’’ In particular, clinical testing
for anxiety suggested ‘‘prominent worry . . . [which]
may be of such magnitude that concentration and
[attention] are compromised.’’ Franklin noted that
‘‘[i]ndividuals with similar profiles may typically misuse
substances to obtain both emotional control and man-
agement of anxiety.’’
Franklin further determined that the respondent
scored in ‘‘the clinically relevant range for paranoia.’’
Franklin opined that the respondent was ‘‘hypervigi-
lant’’ and ‘‘overly suspicious,’’ and that he ‘‘closely moni-
tor[ed] his environment for evidence that others [were]
out to harm him.’’ The clinical personality assessments
that Franklin conducted indicated that the respondent
maintained ‘‘hostility and mistrust of even close rela-
tionships,’’ that he was ‘‘easily insulted and tend[ed] to
hold grudges . . . [was] quick to anger . . . [and was]
more likely to use verbal reasoning than physical
aggression.’’ Testing indicated further, however, that
the respondent ‘‘may become frustrated easily and
when provoked will not back down from confrontation.
This may lead to physical acts of violence. He otherwise
possess[ed] adequate common sense reasoning,’’ while
his judgment remained ‘‘situation specific.’’
Franklin determined that the respondent’s ‘‘anxiety,
mood dysregulation and [attention deficit hyperactivity
disorder] marginally impact[ed] his day-to-day function-
ing,’’ but that these conditions ‘‘are likely to be exacer-
bated . . . under the weight of emotional and
psychological distress.’’ Franklin urged that the respon-
dent receive treatment for these concerns, as well as
for his substance abuse. He offered further recommen-
dations, concluding that ‘‘[i]t is imperative that [the
respondent] be referred for a psychiatric consultation
. . . to identify medication that could be useful in amel-
iorating or managing symptoms of mood dysregulation,
anxiety and [attention deficit hyperactivity disorder].
Without medication, [the respondent] is likely to con-
tinue to have problems.’’ Franklin further recom-
mended that the respondent participate in additional
domestic violence classes to rectify his ‘‘inability to
manage anger and hostility under the weight of emo-
tional distress . . . .’’ Although the respondent claimed
that he had not used marijuana in more than one year
despite his positive drug screens three and six months
prior, Franklin ‘‘strongly advise[d]’’ that the respondent
participate in more substance abuse groups given that
he had previously refused to participate in substance
abuse groups and because ‘‘clinical data suggests that
at the very minimum he continues to crave cannabis
and, therefore, is subject to relapse.’’ On the basis of
these unaddressed concerns, Franklin ultimately rec-
ommended termination of the respondent’s parental
rights.
The respondent completed counseling at Community
Health Resources on December 27, 2012, and no further
treatment was recommended. Thereafter, the respon-
dent’s urine screens were negative. He refused, however,
to engage in hair follicle testing after December, 2012.
A trial was held on the termination of parental rights
on October 2, 2012, January 4, 2013, and March 18, 2013.
In the adjudication phase,12 the trial court found by
clear and convincing evidence that the department had
made reasonable efforts to rehabilitate the respondent
and to reunify him with Shane, and that the respondent
had failed to rehabilitate or sufficiently benefit from
the department’s services. The trial court determined
that the respondent had ‘‘not gained sufficient insight
into his long-standing issues.’’ The trial court found
especially troubling that the respondent continually
asserted that he participated in the services only to
appease the department, and that he repeatedly refused
to cooperate with court-ordered recommendations. It
also found disconcerting the fact that the respondent
continued to state that he did not engage in substance
abuse, yet refused to engage in substance abuse hair
testing. The trial court was further concerned by the
respondent’s refusal to engage in a psychiatric evalua-
tion to determine whether he required medication and
that he did not make efforts ‘‘within a timely manner
to adjust [his] circumstances or [his] conditions to the
extent that [the department] would be able to reunify
[him] with Shane. [He has] failed to fully meet or comply
with the court-ordered steps and [he is] still unable to
care for Shane.’’
In the dispositional phase; see footnote 12 of this
opinion; the trial court considered Shane’s age and feel-
ings and emotional ties he had with his foster parents,
the efforts the respondent had made to adjust his own
conditions to facilitate Shane’s return to his home, and
the fact that no other person’s unreasonable conduct
had prevented the respondent from maintaining a rela-
tionship with Shane, in determining that termination of
the respondent’s parental rights was in Shane’s best
interest. On April 30, 2013, the trial court terminated
the respondent’s parental rights and appointed the com-
missioner as Shane’s statutory parent.
The respondent appealed to the Appellate Court from
the trial court’s judgment, arguing that the trial court
‘‘improperly (1) terminated his parental rights pursuant
to . . . § 17a-112 (j) based on an overly broad interpre-
tation of that 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.’’ In re Shane M., supra, 148 Conn. App. 310. The
Appellate Court affirmed the judgment of the trial court.
Id., 330. We granted the respondent’s petition for certifi-
cation to appeal limited to the following issue: ‘‘Did the
Appellate Court properly conclude that the trial court
correctly determined that the respondent ‘failed to reha-
bilitate’ and thus correctly terminated his parental
rights?’’ In re Shane M., 311 Conn. 930, 86 A.3d 1056
(2014).
On appeal, the respondent claims that the Appellate
Court improperly affirmed the termination of his paren-
tal rights for failure to rehabilitate under § 17a-112 (j)
(3) (B), because the trial court relied (1) on conduct of
the respondent not encompassed by the court-ordered
specific steps, and (2) that in the absence of such con-
duct, there was insufficient evidence to find that he
had failed to rehabilitate. The respondent further claims
that the Appellate Court improperly affirmed the trial
court’s finding that he continued to use cannabis on
the basis of his refusal to submit to a drug test, and
that the trial court’s decision to draw an adverse infer-
ence from that refusal was fundamentally unfair.
We conclude that it was proper for the trial court to
rely on all of the respondent’s contested conduct in its
decision to terminate his parental rights,13 and that the
trial court’s determination that the respondent had
failed to achieve sufficient rehabilitation was supported
by clear and convincing evidence. Finally, we conclude
that it was not unreasonable for the trial court to draw
an adverse inference from the respondent’s refusal to
submit to a drug test. Accordingly, we affirm the Appel-
late Court’s judgment.
I
We first set forth the applicable standard of review
and general principles.14 The trial court is required, pur-
suant to § 17a-112, ‘‘to analyze the [parent’s] rehabilita-
tive status as it relates to the needs of the particular
child, and further . . . such rehabilitation must be
foreseeable within a reasonable time. In re Marvin M.,
48 Conn. App. 563, 578, 711 A.2d 756, cert. denied, 245
Conn. 916, 719 A.2d 900 (1998). Rehabilitate means to
restore [a handicapped or delinquent person] to a useful
and constructive place in society through social rehabil-
itation. [Webster’s] Third New International Dictionary.
The statute does not require [a parent] to prove pre-
cisely when [he] will be able to assume a responsible
position in [his] child’s life. Nor does it require [him]
to prove that [he] will be able to assume full responsibil-
ity for [his] child, unaided by available support systems.
It requires the court to find, by clear and convincing
evidence, that the level of rehabilitation [he] has
achieved, if any, falls short of that which would reason-
ably encourage a belief that at some future date [he]
can assume a responsible position in [his] child’s life.’’
(Internal quotation marks omitted.) In re Eden F., 250
Conn. 674, 706, 741 A.2d 873 (1999). In addition, ‘‘[i]n
determining whether a parent has achieved sufficient
personal rehabilitation, a court may consider whether
the parent has corrected the factors that led to the
initial commitment, regardless of whether those factors
were included in specific expectations ordered by the
court or imposed by the department.’’ (Internal quota-
tion marks omitted.) In re Melody L., 290 Conn. 131,
150–51, 962 A.2d 81 (2009), overruled in part on other
grounds by State v. Elson, 311 Conn. 726, 754, 91 A.3d
862 (2014).
When a child is taken into the commissioner’s cus-
tody, a trial court must issue specific steps to a parent
as to what should be done to facilitate reunification
and prevent termination of parental rights. In re Elvin
G., 310 Conn. 485, 507–508, 78 A.3d 797 (2013); see also
General Statutes § 46b-129 (b), (c) (6) and (j) (3).15 The
respondent’s claims implicate the meaning and scope
of the specific steps, which constitute an order of the
court. Generally, court orders ‘‘are to be construed in
the same fashion as other written instruments,’’ with
the determinative factor being the intention of the court.
(Internal quotation marks omitted.) State v. Denya, 294
Conn. 516, 529, 986 A.2d 260 (2010). Specific steps may
be augmented with supplemental orders, per the trial
court’s discretion. In re Leah S., 284 Conn. 685, 696,
935 A.2d 1021 (2007). ‘‘[The] completion or noncomple-
tion [of the specific steps], however, does not guarantee
any outcome.’’ In re Elvin G., supra, 508. ‘‘Accordingly,
successful completion of expressly articulated expecta-
tions is not sufficient to defeat a department claim that
the parent has not achieved sufficient rehabilitation.’’
(Internal quotation marks omitted.) Id.
Finally, we take this opportunity to clarify our stan-
dard of review of a trial court’s finding that a parent
has failed to achieve sufficient rehabilitation.16 We have
historically reviewed for clear error both the trial court’s
subordinate factual findings and its determination that
a parent has failed to rehabilitate. See, e.g., id., 499.
While we remain convinced that clear error review is
appropriate for the trial court’s subordinate factual find-
ings,17 we now recognize that the trial court’s ultimate
conclusion of whether a parent has failed to rehabilitate
involves a different exercise by the trial court. A conclu-
sion of failure to rehabilitate is drawn from both the
trial court’s factual findings and from its weighing of
the facts in assessing whether those findings satisfy the
failure to rehabilitate ground set forth in § 17a-112 (j) (3)
(B). Accordingly, we now believe that the appropriate
standard of review is one of evidentiary sufficiency,
that is, ‘‘whether the trial court could have reasonably
concluded, upon the facts established and the reason-
able inferences drawn therefrom, that the cumulative
effect of the evidence was sufficient to justify its [ulti-
mate conclusion]. . . . When applying this standard,
we construe the evidence in a manner most favorable
to sustaining the judgment of the trial court.’’ (Citation
omitted.) In re Soncheray H., 42 Conn. App. 664, 668,
680 A.2d 1363, cert. denied, 259 Conn. 940, 684 A.2d
712 (1996).
Turning to the case before us, the respondent con-
tends that three of the findings that the trial court relied
on did not fall within the scope of the court-ordered
specific steps, namely, that the respondent: (1) rejected
the assistance of a parental aide in a clinical setting;
(2) participated in ordered programs only to
‘‘ ‘appease’ ’’ the department rather than acknowledging
that he needed the programs; and (3) declined to
undergo a psychiatric consultation, as recommended
by Franklin, to determine whether he might benefit
from medication for attention deficit hyperactivity dis-
order and his other mental health issues.18 We will exam-
ine each factor in turn.
The court properly considered that the respondent
rejected the assistance of a parental aide during visita-
tion with Shane, because such a finding is clearly cov-
ered by the specific steps requiring the respondent to
(1) ‘‘[t]ake part in counseling and make progress toward
the identified treatment goals,’’ (2) learn ‘‘safe [and]
nurturing parenting,’’ and (3) ‘‘[c]ooperate with service
providers recommended for parenting . . . counsel-
ing.’’ While the respondent did participate in weekly
visitations, parenting classes, and a parenting education
course, he failed to comply fully with these identified
specific steps when he declined a parenting mentor
service to help him learn how to balance the needs of
Shane and his new baby.
The trial court also properly considered the respon-
dent’s repeated statements that he attended court-
ordered rehabilitation programs only to appease the
department. The specific steps required the respondent
to (1) cooperate with service providers and make prog-
ress toward improving his parenting, while learning
appropriate child development, and (2) address his
issues of depression and anger management. The court-
ordered programs would serve little purpose if a partici-
pant is merely going through the motions to appease
the department, rather than working sincerely toward
actual improvement. Indeed, the respondent’s claim
that his ‘‘personal motivating factors for [his] participa-
tion in programs [have] absolutely no role to play under
. . . § 17a-112 (j) (3) (B)’’ is not only unsupported by
any legal citation, but is also stunningly contrary to
common sense. We agree, therefore, with the Appellate
Court’s determination that the respondent’s ‘‘failure to
acknowledge the underlying personal issues that form
the basis for the department’s concerns indicates a fail-
ure to achieve a sufficient degree of personal rehabilita-
tion. See In re Kamora W., 132 Conn. App. 179, 190,
31 A.3d 398 (2011) (respondent refused to acknowledge
drug or alcohol problem); In re Jocquyce C., 124 Conn.
App. 619, 626–27, 5 A.3d 575 (2010) (respondent failed
to acknowledge habitual involvement with domestic
violence); In re Christopher B., 117 Conn. App. 773,
784, 980 A.2d 961 (2009) (respondent blamed others for
problems); In re Jermaine S., 86 Conn. App. 819, 834,
863 A.2d 720 (respondent’s inability to admit she had
substance abuse problem ‘thwarted her ability to
achieve rehabilitation’), cert. denied, 273 Conn. 938, 875
A.2d 43 (2005); In re Sheila J., 62 Conn. App. 470, 481,
771 A.2d 244 (2001) (respondent failed to recognize her
need for recommended counseling).’’ In re Shane M.,
supra, 148 Conn. App. 322.
Finally, the respondent’s refusal to undergo a medical
assessment by a psychiatrist for controlling his diag-
nosed attention deficit hyperactivity disorder and other
mental health issues clearly contravenes the specific
steps requiring him to cooperate with court-ordered
evaluations and testing and with recommendations
regarding assessment and treatment. As detailed by the
trial court, the respondent had a history of serious men-
tal health issues, including suicidal gestures, and had
been diagnosed in a clinical assessment with, inter alia,
mixed anxiety and depressed mood and attention deficit
hyperactivity disorder. The respondent’s contention
that ‘‘[n]owhere in [the] record is there any evidence
that [he] needed medication for [attention deficit hyper-
activity disorder] or anxiety’’ ignores the recommenda-
tion made by Lisa Sargis, a social worker for Radiance,
who reported that he could benefit from an assessment
for medication and the testimony of Leon that she had
discussed Sargis’ recommendation for a medical evalua-
tion with the respondent prior to November, 2012. More-
over, the court properly relied on Franklin’s testimony
about the unreliability of the report of the respondent’s
February, 2011 psychiatric evaluation, which was based
on the respondent’s selective and inaccurate descrip-
tion of his personal history and which had spurred
Franklin’s recommendation for a second evaluation. As
we have repeatedly stated, ‘‘[c]ourts are entitled to give
great weight to professionals in parental termination
cases.’’ (Internal quotation marks omitted.) In re Mel-
ody L., supra, 290 Conn. 161. We therefore conclude
that the trial court properly found that the respondent
had adequate notice via his specific steps that he needed
to complete an assessment to determine whether medi-
cine might help him control his mixed anxiety,
depressed mood and attention deficit hyperactivity
disorder.19
For all the foregoing reasons, we conclude that the
respondent had ample notice of all of the steps with
which he was expected to comply, and that the conduct
of the respondent that the court considered in terminat-
ing his parental rights fell within the scope of the court-
ordered specific steps that were provided to the respon-
dent on two separate occasions.
II
We next consider whether there was sufficient evi-
dence for the trial court to find by clear and convincing
evidence, that the respondent failed to achieve suffi-
cient rehabilitation that ‘‘would encourage the belief
that within a reasonable time, considering the age and
needs of the child, such parent could assume a responsi-
ble position in the life of the child . . . .’’ General Stat-
utes § 17a-112 (j) (3) (B). Our careful review of the
record and lengthy recitation of the factual findings
made by the trial court reveals that the extensive evi-
dence credited by the court strongly supports its deter-
mination that the respondent had failed to achieve
sufficient rehabilitation to be able to parent Shane
within a reasonable period of time. In particular, the
trial court found that the respondent was reported for
domestic abuse, charged with breach of the peace and
was subject to a protective order after he refused to
deliver Shane’s car seat base to Shane’s mother, physi-
cally moved her away, and then drove his car while
Shane’s mother was on top of the car, causing her to
fall. The trial court found further that for a period of
time, the respondent cohabited with Shane’s mother,
despite four protective orders between the two for
domestic violence. The day after the respondent was
diagnosed with adjustment disorder with mixed anxiety
and depressed mood, attention deficit hyperactivity dis-
order, and cannabis abuse, he was arrested for breach
of the peace and trespassing when he tried to break
down the door at the residence of Shane’s mother with
a chair. The respondent’s first psychiatric evaluation
appeared to be self-reported and inaccurate. He contin-
ued to exhibit a very high anxiety level and problems
coping with stress despite the department’s continued
efforts to assist him through counseling. He was
arrested for possession of a controlled substance and
for driving unreasonably fast, which he did not report
to the department. He was sentenced to three months
in jail for disorderly conduct, after he had completed
domestic violence sessions and after the department
had petitioned to terminate his parental rights, for pour-
ing gasoline on his grandfather’s kitchen floor and for
repeatedly kicking the family dog. The respondent con-
tinued to test positive for marijuana from August, 2011,
to after the department petitioned to terminate his
parental rights and up until June, 2012, less than four
months before his trial commenced. The respondent
did not attend some counseling sessions, refused to
participate in others, or participated only to satisfy the
department. In sum, the respondent ‘‘fail[ed] to con-
tinue with substance abuse treatment . . . [needed]
active monitoring and testing for drug abuse . . .
[lacked] insight in addressing his ongoing anger issues
. . . [needed] a comprehensive evaluation concerning
his medication needs, and . . . [failed] to achieve suffi-
cient personal rehabilitation after such an extensive
period of time . . . .’’
Although the respondent encourages us to focus on
the positive aspects of his behavior and to ignore the
negatives, we will not scrutinize the record to look
for reasons supporting a different conclusion than that
reached by the trial court. See In re Melody L., supra,
290 Conn. 148. We simply cannot find fault with the
trial court’s reasoning that, ‘‘[a]lthough [the respondent]
participated in most of the services, albeit with varying
degrees of motivation, [his] failure to adequately
address [his] substance abuse, mental health and
domestic violence issues remain significantly defi-
cient.’’ Thus, we conclude that the trial court reasonably
determined, based on its factual findings and the rea-
sonable inferences drawn therefrom, that the respon-
dent failed to achieve sufficient rehabilitation that
would encourage the belief that, within a reasonable
time, he could assume a responsible position in
Shane’s life.20
III
Finally, the respondent claims that the trial court
improperly inferred that he continued to engage in sub-
stance abuse on the basis of his refusal to submit to a
hair follicle drug test, without informing him first that
such an inference could occur. He analogizes the
adverse inference drawn from his refusal to submit to
a court-ordered drug test to one drawn from a parent’s
failure to testify at termination proceedings and con-
tends that the trial court acted in violation of Practice
Book §§ 32a-1 (h) and 35a-7A,21 as well as General Stat-
utes § 46b-137 (d),22 in reasoning as it did. Specifically,
the respondent claims that failing to notify him of the
possibility of such an inference constituted trial by
ambuscade and deprived him of the right to a fair trial.
We conclude that the respondent had adequate notice of
the consequences of his failing to adhere to the specific
steps ordered by the trial court and that the trial court
properly inferred that the respondent continued to
engage in substance abuse.
As a general matter, the trial court may, ‘‘[i]n the
absence of an express statutory provision to the con-
trary . . . draw all fair and reasonable inferences from
the facts and circumstances [that] it finds established
by the evidence . . . .’’ (Citations omitted; footnotes
omitted; internal quotation marks omitted.) In re
Samantha C., 268 Conn. 614, 635–36, 847 A.2d 883
(2004). ‘‘[P]roof of a material fact by inference from
circumstantial evidence need not be so conclusive as
to exclude every other hypothesis. It is sufficient if the
evidence produces in the mind of the trier a reasonable
belief in the probability of the existence of the material
fact. . . . Thus, in determining whether the evidence
supports a particular inference, we ask whether that
inference is so unreasonable as to be unjustifiable. . . .
In other words, an inference need not be compelled by
the evidence; rather, the evidence need only be reason-
ably susceptible of such an inference.’’ (Internal quota-
tion marks omitted.) Curran v. Kroll, 303 Conn. 845,
857, 37 A.3d 700 (2012).
Here, the respondent was issued, and agreed to, spe-
cific steps requiring him to refrain from drug use and
to submit to drug testing as required by the department.
For that reason alone, his claim of unfair surprise from
the negative inference resulting from his refusal to take
a drug test is meritless. As to the reasonableness of the
trial court’s inference, after Shane was taken into the
commissioner’s custody, the respondent was arrested
on cannabis charges, and he tested positive for mari-
juana on five separate occasions. As a result of the
positive screens, the respondent was referred for fur-
ther substance abuse and mental health assessments;
however, he did not attend his scheduled appointments.
Although some of the respondent’s subsequent urine
tests were negative, Franklin testified that these tests
‘‘were woefully inadequate . . . because people can
fake a urine test. Anyone with any experience with
working on the Internet can find ways that you can
dilute the solution or drink things to dilute the solution,
which is typically why you want urinalysis and hair
analysis.’’ Accordingly, the trial court was cognizant of
the potential for the respondent to either relapse into
substance abuse or to manipulate his urine tests. Given
the foregoing, the respondent certainly had notice that
refusing to submit to drug testing could cause the trial
court to conclude that he was not drug free and, there-
fore, increase the chance that his parental rights would
be terminated. In short, the trial court reasonably
inferred, based on the respondent’s proven past drug
use and his refusal to submit to testing, as his specific
steps required, that he had continued to use marijuana.23
We also reject the respondent’s contention that an
adverse inference drawn from the failure to testify and
an unfavorable inference drawn from the refusal to
submit to court-ordered drug screens are so analogous
that the same procedural safeguards should apply. To
the extent this claim requires us to interpret the scope
of a rule of practice, our review is plenary. State v.
Sheriff, 301 Conn. 617, 622, 21 A.3d 808 (2011).
Both Practice Book § 32a-1 (h) and General Statutes
§ 46b-137 (d), by their explicit terms, apply only to ‘‘con-
fession[s], admission[s] or statement[s]’’ that are ‘‘writ-
ten or oral,’’ and the respondent does not explain how
a refusal to take a drug test falls within this language.
See, e.g., State v. Campfield, 44 Conn. App. 6, 17, 687
A.2d 903 (1996), cert. denied, 240 Conn. 916, 692 A.2d
814, cert. denied, 522 U.S. 823, 118 S. Ct. 81, 139 L. Ed.
2d 39 (1997) (test designed to detect gun powder residue
‘‘does not involve testimony or communications, [thus]
the refusal to submit to it does not constitute invocation
of the right to remain silent, and admission of the evi-
dence of such refusal does not constitute commentary
on a defendant’s choice to remain silent’’); In re Kas-
maesha C., 148 Conn. App. 666, 679 n.9, 84 A.3d 1279
(court’s reliance on respondent’s competency evalua-
tion in assessing respondent’s ability to achieve rehabili-
tation not plain error), cert. denied, 311 Conn. 937, 88
A.3d 549 (2014). ‘‘[C]ompulsion which makes a suspect
or accused the source of real or physical evidence does
not violate a person’s constitutional rights as it is not
such as compels communications or testimony.’’ (Inter-
nal quotation marks omitted.) State v. Campfield, supra,
16. We thus conclude that the Appellate Court properly
declined to expand the parent and child testimonial
‘‘right to silence’’ articulated in Practice Book § 32a-1
(h) and General Statutes § 46b-137 and discussed in In
re Samantha C., supra, 268 Conn. 635–36, to the refusal
to submit to a court-ordered drug test.
The judgment of the Appellate Court is affirmed.
In this opinion PALMER, EVELEIGH, McDONALD
and ESPINOSA, Js., concurred.
* In accordance with the spirit and intent of General Statutes § 46b-142
(b) and Practice Book § 79a-12, the names of the parties involved in this
appeal are not disclosed. The records and papers of this case shall be open
for inspection only to persons having a proper interest therein and upon
order of the Appellate Court.
** August 28, 2015, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
General Statutes § 17a-112 (j) provides in relevant part: ‘‘The Superior
Court, upon notice and hearing as provided in sections 45a-716 and 45a-
717, may grant a petition [terminating parental rights] if it finds by clear
and convincing evidence that . . . (3) . . . (B) the child (i) has been found
by the Superior Court or the Probate Court to have been neglected or
uncared for in a prior proceeding . . . (ii) and the parent of such child has
been provided specific steps to take to facilitate the return of the child to
the parent pursuant to section 46b-129 and has failed to achieve such degree
of personal rehabilitation as would encourage the belief that within a reason-
able time, considering the age and needs of the child, such parent could
assume a responsible position in the life of the child . . . .’’
2
The trial court also terminated the parental rights of Shane’s mother,
who is not involved in the present appeal. The respondent and Shane’s
mother had a second child on December 20, 2011, who is referred to in this
opinion as the ‘‘baby.’’
3
The trial court detailed the respondent’s extensive personal history of
neglect and mental health issues: ‘‘[The respondent’s] history with [the
department] commenced when he was a child dating back to 1993. He was
committed to [the department’s] care in August, 1999, due to issues of
physical neglect, substance abuse and lack of adequate supervision. [The
respondent] was placed with his paternal grandmother via subsidized trans-
fer of guardianship. He was diagnosed with attention deficit hyperactivity
disorder as a child and was prescribed Ritalin.
‘‘[The respondent] met [Shane’s] mother in 2007 during high school. [The
respondent] had [Shane’s] mother stay at his grandparents’ home when she
was no longer allowed to stay with her aunt. [The respondent] did not
have his grandmother’s permission to do so and both [the respondent] and
[Shane’s] mother left the home. [The respondent] and [Shane’s] mother then
began sleeping in the train station or in [the respondent’s] car. Thereafter,
[the respondent] requested permission from his grandparents for [Shane’s]
mother to reside with them. When his grandparents refused, [the respondent]
threatened to hang himself. [The respondent] was transported to the hospital
after an attempted hanging at his grandparents’ residence. When [Shane’s]
mother became pregnant with Shane in 2009, [the respondent] got an apart-
ment where he and [Shane’s] mother resided for approximately four months.
[The respondent] was not able to continue to pay the rent and was not able
to continue living with [Shane’s] mother, so he returned to reside at his
grandparents’ home. . . .
‘‘[The respondent] has a history of mental health issues. [The respondent]
was admitted to the Institute of Living in June, 1999, for four days. He was
diagnosed with depressive disorder and cannabis abuse. He was discharged
and was prescribed Celexa on a daily basis and [it] was recommended [that
he] attend North Central Counseling. [The respondent] did not continue to
take the medication and did not follow up with attendance for the therapy.
[The respondent] does not believe he has any current medical issues nor
does he feel he needs any mental health services.’’ (Footnote omitted.)
4
The trial court also detailed the respondent’s domestic violence and
criminal history: ‘‘He was convicted of breach of the peace [in the second
degree] on December 10, 2009, for which he was sentenced to [ninety]
days in jail, execution suspended and a conditional discharge for one year;
possession of a controlled substance on May 3, 2011, for which he received
a nolle.’’ He was also arrested for disorderly conduct on November 27, 2011,
for threatening his grandfather and regularly kicking his dog.
‘‘There have been a total of four protective orders between [Shane’s]
mother and [the respondent] with [Shane’s] mother being the protected
person in three. The most recent protective order expired on September
28, 2010.’’
5
The respondent’s complete specific steps were: (1) to keep all appoint-
ments with the department and cooperate with the department’s home visits,
announced or unannounced, and visits by Shane’s court-appointed attorney
and/or guardian ad litem; (2) to let the the department and his and Shane’s
attorney know his and Shane’s whereabouts at all times; (3) to participate
in parenting counseling at Radiance and individual counseling at North
Central Counseling to address issues of depression and anger management;
(4) to participate in in-home support services referred by the department
and cooperate with them; (5) to submit to substance abuse evaluation and
follow the recommendations about treatment; (6) to submit to random drug
screenings, the time and method of testing determined by the department;
(7) to not use illegal drugs or abuse alcohol or medicine; (8) to cooperate with
service providers recommended for parenting and individual counseling, in-
home support services and/or substance abuse assessment and treatment,
including the nonviolence alliance program for domestic violence counsel-
ing, Radiance for parenting, and North Central Counseling for individual
counseling; (9) to cooperate with court-ordered evaluations or testing; (10)
to sign releases allowing the department to talk to service providers to
check on attendance, cooperation and progress toward identified goals and
for use in future proceedings with the court; (11) to get or maintain a home
and a legal source of income; (12) to immediately inform the department
of any changes in the make-up of the household to make sure that the
change does not hurt the health and safety of the child; (13) to cooperate
with any protective or restraining order or safety plan approved by the
department to avoid more domestic violence incidents; (14) to have no
further involvement with the criminal justice system and to follow conditions
of probation or parole; (15) to take care of Shane’s physical, medical, or
emotional needs, including keeping Shane’s appointments with his medical,
psychological, psychiatric, or educational providers; (16) to make all neces-
sary child-care arrangements to make sure Shane is properly supervised
and cared for by appropriate caretakers; (17) to keep Shane in the state;
and (18) to visit Shane as often as the department permits.
6
The respondent tested negative for marijuana in a random urine screen
on August 25, 2011.
7
General Statutes § 46b-129 (k) (1) provides in relevant part: ‘‘Nine months
after placement of the child . . . in the care and custody of the commis-
sioner pursuant to . . . an order issued by a court of competent jurisdiction
. . . the commissioner shall file a motion for review of a permanency
plan . . . .’’
We note that § 46b-129 (k) (1) has been changed since the time of the
department’s motion for review of the proposed permanency plan. See, e.g.,
Public Acts, Spec. Sess., June, 2012, No. 12-1, § 273; Public Acts 2013, No.
13-234, § 71. Those changes, however, are not relevant to this appeal. For
purposes of convenience and clarity, we refer to the current revision of
the statute.
8
Practice Book § 35a-14 is substantially similar in substance to General
Statutes § 46b-129 (k) (1) and any dissimilarities are not relevant to this
claim.
9
General Statutes § 46b-129 (k) (2) provides in relevant part: ‘‘At a perma-
nency hearing held in accordance with the provisions of subdivision (1) of
this subsection, the court shall approve a permanency plan that is in the
best interests of the child . . . and takes into consideration the child’s . . .
need for permanency. . . .’’
We note that § 46b-129 (k) (2) has been changed since the time of the
trial court’s approval of the permanency plan. See Public Acts, Spec. Sess.,
June, 2012, No. 12-1, § 273. Those changes, however, are not relevant to
this appeal. For purposes of convenience and clarity, we refer to the current
revision of the statute.
10
See footnote 2 of this opinion.
11
The respondent successfully completed his probationary period on Feb-
ruary 10, 2013.
12
‘‘Proceedings to terminate parental rights are governed by § 17a-112.
. . . Under § 17a-112, a hearing on a petition to terminate parental rights
consists of two phases: the adjudicatory phase and the dispositional phase.
During the adjudicatory phase, the trial court must determine whether one
or more of the . . . grounds for termination of parental rights set forth in
§ 17a-112 [(j) (3)] exists by clear and convincing evidence.’’ (Citation omitted;
internal quotation marks omitted.) In re Elvin G., 310 Conn. 485, 500, 78
A.3d 797 (2013). ‘‘If the trial court determines that a statutory ground for
termination exists, then it proceeds to the dispositional phase. During the
dispositional phase, the trial court must determine whether termination is
in the best interests of the child. . . . The best interest determination also
must be supported by clear and convincing evidence.’’ (Internal quotation
marks omitted.) In re Melody L., 290 Conn. 131, 163, 962 A.2d 81 (2009),
overruled in part on other grounds by State v. Elson, 311 Conn. 726, 754,
91 A.3d 862 (2014); see also General Statutes §§ 17a-112 (k) and 45a-717 (h).
13
Because we conclude that the conduct of the respondent on which the
trial court relied was clearly related to the respondent’s specific steps, we
need not decide in this case whether § 17a-112 (j) (3) (B) permits a court
to consider conduct that is unrelated to the articulated steps.
14
Although it is not clear that the respondent’s claims were raised at
trial, at least not with precision, we nevertheless will review them because
minimal requirements for review are met and we conclude that the respon-
dent cannot prevail on his claims. See Blumberg Associates Worldwide,
Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 158 n.28, 84
A.3d 840 (2014) (‘‘[r]eviewing an unpreserved claim when the party that
raised the claim cannot prevail is appropriate because it cannot prejudice
the opposing party and such review presumably would provide the party
who failed to properly preserve the claim with a sense of finality that the
party would not have if the court declined to review the claim’’).
15
General Statutes § 46b-129 (b) provides in relevant part: ‘‘Upon issuance
of an ex parte order [vesting temporary custody of a child in an agency or
suitable person], the court shall provide to the commissioner and the parent
or guardian specific steps necessary for each to take to address the ex parte
order for the parent or guardian to retain or regain custody of the child or
youth. Upon the issuance of such order, or not later than sixty days after
the issuance of such order, the court shall make a determination whether
the Department of Children and Families made reasonable efforts to keep
the child or youth with his or her parents or guardian prior to the issuance
of such order and, if such efforts were not made, whether such reasonable
efforts were not possible, taking into consideration the child’s or youth’s
best interests, including the child’s or youth’s health and safety. . . .’’
General Statutes § 46b-129 (c) (6) provides in relevant part: ‘‘The court,
after a hearing pursuant to this subsection, shall order specific steps the
commissioner and the parent or guardian shall take for the parent or guardian
to regain or to retain custody of the child or youth . . . .’’
General Statutes § 46b-129 (j) (3) provides in relevant part: ‘‘The court
shall order specific steps that the parent must take to facilitate the return
of the child or youth to the custody of such parent.’’
16
On May 20, 2015, we ordered, sua sponte, the parties to submit supple-
mental briefs on the appropriate standard of review.
17
By way of example, these findings include whether the parent has gained
insight into his or her mental health issues, complied with recommendations
stemming from his or her specific steps, as well as the trial court’s observa-
tions of the parent and the conduct of the parent during the course of
termination proceedings.
18
The respondent also claims that a fourth finding by the trial court,
namely, that the respondent continued to use marijuana, was based on
insufficient evidence. As we have discussed in greater detail herein, we
conclude that the trial court’s finding that the respondent continued to abuse
drugs was not clearly erroneous.
19
In addition to arguing that the conduct upon which the trial court relied
fell outside the scope of the specific steps, the respondent contends that
the trial court used this conduct to improperly create ‘‘eleventh hour’’ con-
cerns. We disagree. Contrary to the respondent’s assertion, the trial court
properly considered the respondent’s actions up to and during trial to deter-
mine that he did not rehabilitate within a reasonable time. See Practice
Book § 35a-7 (a) (‘‘[i]n the adjudicatory phase, the judicial authority is
limited to evidence of events preceding the filing of the petition or the latest
amendment, except where the judicial authority must consider subsequent
events as part of its determination as to the existence of a ground for
termination of parental rights’’ [emphasis added]); In re Kyara H., 147
Conn. App. 855, 879, 83 A.3d 1264 (trial court properly considered events
occurring after petition to terminate parental rights had been filed in its
determination that parent had not sufficiently rehabilitated), cert. denied,
311 Conn. 923, 86 A.3d 468 (2014).
20
In reviewing the trial court’s decision, ‘‘[b]ecause it is the trial court’s
function to weigh the evidence . . . we give great deference to its findings.’’
(Internal quotation marks omitted.) Ahmadi v. Ahmadi, 294 Conn. 384, 398,
985 A.2d 319 (2009). Additionally, we do not have the jurisdiction to retry
the facts of this case. Dexter Yarn Co. v. American Fabrics Co., 102 Conn.
529, 538, 129 A. 527 (1925). The dissent seems to rely in part on alleged
gaps in Franklin’s report and on selective testimony from the trial that
reflects some behavior by the respondent that was compliant with steps
provided by the department and, based on this, attempts to discredit the
expert’s opinion as unsupported by clear and convincing evidence. In doing
so, the dissent ignores testimony from other witnesses that was relied on
by the trial court and that strongly supports the court’s conclusions.
By way of example, with regard to the trial court’s function to weigh
evidence at trial, the dissent has essentially ignored the fact that the respon-
dent declined to submit to a hair test, which was definitive of his drug use
history. It is simply not our role to overrule the trial court for refusing to
overlook the fact that, given the choice between reuniting with his son or
maintaining his body hair, the respondent declined a haircut, especially
given the testimony by a social worker, Charles Frazier, who noticed that
the respondent appeared to be under the influence of marijuana at one or
two of his counseling sessions. Additionally, the dissent has overlooked the
testimonies of two department social workers, Amita Patel and Leon, who
both testified to facts that the court relied on in terminating the respondent’s
parental rights.
Finally, as the dissent appropriately notes, the respondent refused to
undergo further counseling until after he was reunited with his child. The
trial court was certainly not unreasonable in agreeing with the department
that the respondent should not have the authority to decide whether he
should attend therapy, as this would turn the child protection system on
its head and would seriously undermine the department’s ability to facilitate
an effective and sustainable reunification. Indeed, it is far more reasonable
for the court to be concerned about, and to take into account in determining
that the respondent has failed to rehabilitate, that he has conceded that
he needed further therapy before he was adequately rehabilitated but has
simultaneously taken the position that Shane should continue to suffer under
his care in the meantime.
21
Practice Book § 32a-1 (h) provides in relevant part: ‘‘Any confession,
admission or statement, written or oral, made by the parent . . . of the
child or youth after the filing of a petition alleging such child or youth to
be neglected . . . shall be inadmissible in any proceeding held upon such
petition against the person making such admission or statement unless such
person shall have been advised . . . that any statements such person makes
may be introduced in evidence against such person.’’
Practice Book § 35a-7A provides in relevant part: ‘‘If a party requests that
the judicial authority draw an adverse inference from a parent’s . . . failure
to testify or the judicial authority intends to draw an adverse inference,
either at the start of any trial or after the close of the petitioner’s case-in-
chief, the judicial authority shall notify the [parent] . . . that an adverse
inference may be drawn from [the parent’s] failure to testify.’’
22
The language of § 46b-137 (d) is substantially similar to that of Practice
Book § 32a-1 (h), and any dissimilarities are irrelevant to the present appeal.
23
We find unpersuasive the respondent’s claim that, even properly drawn,
this inference did not prove that he failed to rehabilitate because criminal
penalties for possession of marijuana have been reduced and the legislature
has approved the use of marijuana for palliative medical purposes. Suffice
it to say, regardless of marijuana’s recent limited legalized status, the respon-
dent was ordered to refrain from using it due to his extensive personal
history of substance abuse.