In re Navaeh W. ( 2014 )

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IN RE NAVAEH W. ET AL.*
(AC 36596)
DiPentima, C. J., and Sheldon and Sullivan, Js.
Argued September 11—officially released November 24, 2014**
(Appeal from Superior Court, judicial district of New
Haven, Juvenile Matters, Cronan, J.)
Erich H. Gaston, with whom, on the brief, was Alison
P. Gaston, for the appellant (respondent mother).
Renee Bevacqua Bollier, assistant attorney general,
with whom, on the brief, were George Jepsen, attorney
general, and Benjamin Zivyon, assistant attorney gen-
eral, for the appellee (petitioner).
Opinion
SHELDON, J. In this appeal from the judgments of
the trial court terminating the parental rights of the
respondent mother1 as to her two minor daughters,
Nevaeh W., age six, and Janiyah A., age four, the respon-
dent raises three claims of error. With respect to the
adjudicatory phase of the termination proceeding, the
respondent claims that the trial court erred in finding:
(1) that the Department of Children and Families
(department) made reasonable efforts to reunify her
with her children; and (2) that she had failed to achieve
the degree of personal rehabilitation that would encour-
age the belief that within a reasonable time, considering
the age and needs of her daughters, she could assume
a responsible position in their lives. With respect to the
dispositional phase of the termination proceeding, the
respondent claims deficiencies in the process by which
the trial court determined that termination of her paren-
tal rights is in the best interests of her two children.
Specifically, she asserts that the trial court based its
best interests determination solely upon its findings as
to the children’s positive relationship with and likely
future adoption by their preadoptive foster parents,
without considering or making written findings as to
the children’s relationship with her, as expressly
required by General Statutes § 17a-112 (k) (4). We reject
the respondent’s claims of error as to the court’s adjudi-
catory findings; however, we conclude that the court
failed to meet the minimum statutory requirements gov-
erning the dispositional phase of the proceedings, and,
therefore, we reverse in part the judgments of the
trial court.
The respondent gave birth to her daughter, Nevaeh,
in July, 2008. Shortly thereafter, on September 4, 2008,
the petitioner, the Commissioner of Children and Fami-
lies, invoked an administrative ninety-six hour hold as
to Navaeh due to the respondent’s alleged ‘‘substance
abuse, unaddressed mental health issues and unstable
housing.’’ An order of temporary custody subsequently
was issued on September 8, 2008, and sustained on
October 23, 2008. The respondent later engaged in sub-
stance abuse treatment at Coventry House, an inpatient
facility, where Nevaeh was returned to her care and
custody under an order of protective supervision on
January 8, 2009. On April 3, 2009, the petitioner invoked
a second ninety-six hour hold as to Navaeh after the
respondent was discharged from Coventry House for
noncompliance with program rules.
In March, 2010, after Nevaeh’s recommitment to the
petitioner, the respondent gave birth to Janiyah. Several
months after Janiyah’s birth, in January, 2011, Nevaeh’s
commitment was revoked and she was reunited with
the respondent under an order of protective supervi-
sion. On July 2, 2012, the respondent was arrested,2
whereupon an order of temporary custody was granted
by the court as to both children. The July 2, 2012
removal was Nevaeh’s third removal and Janiyah’s first
removal from the respondent. On October 24, 2012, both
children were adjudicated neglected and committed to
the care and custody of the petitioner. On November
30, 2012, the children were placed in a preadoptive
home that had previously served as a placement for
Nevaeh in 2009 and 2010.
On February 22, 2013, the petitioner filed termination
petitions with respect to the two children, alleging that
the respondent’s parental rights should be terminated
on the grounds that she had failed to rehabilitate, and
that she had abandoned the children. A joint trial on the
two petitions took place over two days, commencing on
October 15, 2013, and ending on November 20, 2013.
The respondent was represented at the trial by counsel,
as were the children.3 The petitioner called four wit-
nesses to testify in support of the petitions for termina-
tion, and the respondent called two witnesses to testify
on her behalf. Thereafter, on January 27, 2014, the trial
court, Cronan, J., rendered its decision. In a seven
page memorandum of decision, the court granted both
petitions on the grounds that the respondent had failed
to achieve a sufficient degree of personal rehabilitation
to encourage the belief that within a reasonable time,
considering the age and needs of her daughters, she
could assume a responsible position in their lives, and
that termination of her parental rights was in the best
interests of her children. Thereafter, the respondent
filed the present appeal. Additional facts will be set
forth as necessary to review the respondent’s claims.
I
The respondent claims initially that the court made
clearly erroneous factual findings in the adjudicatory
phase of the termination proceeding. Specifically, she
claims that the court erred in finding by clear and con-
vincing evidence: (1) that the department had made
reasonable efforts to reunify her with her children; and
(2) that she had failed to achieve a sufficient degree of
personal rehabilitation to satisfy the requirements of
§ 17a-112 (j) (3) (B) (i). We disagree.
‘‘Our 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.’’ (Inter-
nal quotation marks omitted.) In re Aziza S.-B., 138
Conn. App. 639, 657, 53 A.3d 1001 (2012). ‘‘[G]reat
weight is given to the judgment of the trial court because
of [the court’s] opportunity to observe the parties and
the evidence.’’ (Internal quotation marks omitted.) In
re Davonta V., 285 Conn. 483, 488, 940 A.2d 733 (2008).
‘‘We do not examine the record to determine whether
the trier of fact could have reached a conclusion other
than the one reached. . . . [O]n review by this court
every reasonable presumption is made in favor of the
trial court’s ruling.’’ (Internal quotation marks omitted.)
In re Jordan T., 119 Conn. App. 748, 755, 990 A.2d 346,
cert. denied, 296 Conn. 905, 992 A.2d 329 (2010).
‘‘The legal framework for deciding termination peti-
tions is well established. [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 termina-
tion of parental rights set forth in § 17a-112 [j] exists
by clear and convincing evidence. . . . If the trial court
determines that a statutory ground for termination
exists, then it proceeds to the dispositional phase. Dur-
ing the dispositional phase, the trial court must deter-
mine whether termination is in the best interests of the
child. . . . The best interest determination also must
be supported by clear and convincing evidence.’’ (Cita-
tions omitted; footnotes omitted; internal quotations
marks omitted.) In re Davonta V., supra, 285 Conn.
487–88; see also General Statutes § 17a-112 (k).
A
Reunification Efforts
The respondent first claims that the court erred in
finding that the petitioner proved by clear and convinc-
ing evidence that the department had made reasonable
efforts to reunify her with her children, as required by
§ 17a-112 (j) (1).
As a preliminary matter, § 17a-112 (j) (1) requires the
court to make a finding as a prerequisite to terminating
parental rights that the department has made reason-
able efforts to reunify the child with the parent. ‘‘The
word reasonable is the linchpin on which the depart-
ment’s efforts in a particular set of circumstances are
to be adjudged, using the clear and convincing standard
of proof. Neither the word reasonable nor the word
efforts is, however, defined by our legislature or by the
federal act from which the requirement was drawn.
. . . [R]easonable efforts means doing everything rea-
sonable, not everything possible.’’ (Internal quotation
marks omitted.) In re Tabitha T., 51 Conn. App. 595,
600, 722 A.2d 1232 (1999). ‘‘[R]easonableness is an
objective standard . . . and whether reasonable
efforts have been proven depends on the careful consid-
eration of the circumstances of each individual case.’’
(Internal quotation marks omitted.) In re Ebony H., 68
Conn. App. 342, 349, 789 A.2d 1158 (2002).
In making its determination that reasonable efforts
had been made in this case, the court found the follow-
ing. ‘‘[The department] has provided numerous opportu-
nities to [the respondent] for treatment of her
substances and mental health problems that would
result in reunification. . . . She has not been able to
establish a track record of successfully completing
these programs and gaining the stability necessary to
raise two young girls.’’ In support of its conclusion, the
court cited a number of treatment programs that the
respondent had started but failed to complete.4
The respondent argues that, contrary to the court’s
conclusions, the evidence shows that the department
had ‘‘written her off’’ based upon her prior unsuccessful
attempts to complete treatment, as a result of which it
had allegedly chosen not to provide her with additional
services. In addition, she claims that the evidence shows
that she had made a ‘‘substantial step’’ prior to the
termination proceedings, in that she had voluntarily
sought treatment for her alcohol abuse and achieved
sobriety. Accordingly, she argues, the department had
an obligation to reengage with her and provide her
additional services aimed at reunification as well as to
afford her additional opportunities for visitation with
her children.
In support of her argument, the respondent directs
our attention to In re Vincent B., 73 Conn. App. 637,
645, 809 A.2d 1119 (2002), cert. denied, 262 Conn. 934,
814 A.2d 136 (2003), in which this court reversed an
order terminating a father’s parental rights because the
department had made ‘‘no efforts at reunification at
all.’’ In In re Vincent B., the respondent father had a
lengthy history with the department as a result of previ-
ous termination petitions that had been filed with
respect to his other children. Id., 642. Based upon the
father’s previous failure to avail himself of services,
the department concluded that he would be similarly
unwilling or unable to benefit from efforts at reunifica-
tion with his child, Vincent. Id. Accordingly, the depart-
ment did not contact the father or offer him any services
prior to seeking termination of his parental rights. Id.,
643. In reversing the termination order, this court held
that the department’s decision to make ‘‘no efforts’’ to
reunify the father with his son was not reasonable. Id.,
645. This court also noted that there was evidence in
the record that the father had undergone substance
abuse treatment and was sober and, thus, it was likely
that he would benefit from reunification services. Id.,
646.
There are important differences between In re Vin-
cent B. and the present case. First and foremost, in this
case there is no evidence that the department ever
denied the respondent services; in fact, there is evi-
dence that the department made repeated efforts to
provide the respondent with inpatient and outpatient
substance abuse treatment and counseling. The respon-
dent concedes that referrals for such services were
indeed made, but claims that these services were inade-
quate to assist her because they were not tailored to
meet her individual needs. She argues, inter alia, that
the department had ‘‘committed to terminating [her]
parental rights to the children,’’ and thus was not ‘‘even
going through the motions’’ of helping her to pursue
reunification. We disagree.
The record indicates that the department began offer-
ing the respondent services shortly after Nevaeh’s birth
in 2008. These services were designed to help the
respondent address the problems that interfered with
her ability to parent Navaeh, particularly her alcohol
abuse and mental health issues. In addition, the respon-
dent was provided with supportive housing. The record
shows that on two occasions when the respondent suc-
cessfully completed programs in 2009 and 2011, she was
reunified with Nevaeh. The department made similar
efforts to provide appropriate services to the respon-
dent after the children came into the custody of the
petitioner in July, 2012. Joel Pullen, a department social
worker, testified as to the department’s efforts at reuni-
fication prior to trial, which included a referral to the
Fresh Start program in Hartford. The respondent did not
complete the Fresh Start program, and the department
subsequently made a referral to the APT Foundation.
In sum, the record reflects that this is not a case where
the department made no efforts at reunification at all.
See In re Vincent B., supra, 73 Conn. App. 645.
Another important distinction between the present
case and In re Vincent B. is that here there is evidence
that the respondent herself undermined the depart-
ment’s efforts to facilitate reunification with her chil-
dren. Pullen testified that in November, 2012, he
informed the respondent that the department intended
to place the children with the foster family that had
previously served as a placement for Nevaeh in 2009 and
2010. The respondent, who reportedly had a difficult
relationship with the foster family, was not in
agreement with that plan. According to Pullen’s testi-
mony, ‘‘[she] made it very clear to me, to my supervisor,
to my program manager that she was very disgusted
with the plan for her child to be placed in the foster
home and she [did not] want anything to do with the
[department’s case], the involvement of her daughters
or any further visits.’’ The respondent subsequently
withdrew from her inpatient substance abuse treatment
program without providing a forwarding address to the
department. The respondent did not resurface until Feb-
ruary, 2013.
As previously noted, in assessing the department’s
reunification efforts, ‘‘[t]he word reasonable is the
linchpin on which the department’s efforts in a particu-
lar set of circumstances are to be adjudged . . . .’’
(Emphasis added; internal quotation marks omitted.)
In re Tabitha T., supra, 51 Conn. App. 600. It is well
established that ‘‘[t]he department is not required to
provide reasonable efforts to a parent when the parent
refuses to participate or engage in any of those efforts.
. . . [I]t is axiomatic that the law does not require a
useless and futile act.’’ (Citations omitted; internal quo-
tation marks omitted.) In re Christopher C., 134 Conn.
App. 473, 478–79 n.7, 39 A.3d 1127 (2012); see also In
re Kyara H., 147 Conn. App. 855, 874, 83 A.3d 1264 (trial
court’s determination that department made reasonable
efforts to facilitate reunification could reasonably be
assessed in light of respondent’s lack of interest in
cooperating with such efforts), cert. denied, 311 Conn.
923, 86 A.3d 468 (2014). In finding that the department
had made reasonable efforts to reunify the respondent
and her children, the court cited the respondent’s poor
‘‘track record’’ as a barrier to reunification. The court’s
subsequent adjudicatory findings likewise stated that
the respondent had been ‘‘inconsistent in seeking and
successfully completing programs that would address
her ongoing needs . . . .’’ Given the evidence and the
court’s resulting findings, the record reasonably sup-
ports the inference that the court factored the respon-
dent’s lack of cooperation into its reasonable efforts
determination.
The trial court’s determination of this issue will not
be overturned on appeal unless, in light of all of the
evidence in the record, it is clearly erroneous. In re
Destiny R., supra, 134 Conn. App. 628–29. In light of
the evidence that was presented at trial, the court rea-
sonably concluded that the department made reason-
able efforts to reunify the respondent with her children.
B
Rehabilitation
The respondent next claims that the court erred in
finding, by clear and convincing evidence, that she had
failed to rehabilitate to the degree required by § 17a-
112 (j) (3) (B) (i). The respondent argues that the court’s
finding as to rehabilitation was clearly erroneous, in
that the court placed inappropriate emphasis on her
prior relapses and substance abuse, while disregarding
evidence of her improved circumstances and sobriety
at the time of trial. The petitioner maintains that the
evidence suggested that the respondent needed ‘‘to
show at least a year of sobriety [and] stable housing
before reunification could be considered,’’ and thus the
court properly found that she was not in a position to
assume parental responsibility for her children.5 On the
basis of our review of the record, we agree that there
was factual support for the court’s determination, and
thus reject the respondent’s claim.
Failure to rehabilitate is one of the statutory grounds
for termination of parental rights under § 17a-112 (j).6
‘‘Personal rehabilitation as used in the statute refers to
the restoration of a parent to his or her former construc-
tive and useful role as a parent. . . . [The statute]
requires the trial court to analyze the [respondent’s]
rehabilitative status as it relates to the needs of the
particular child, and further, that such rehabilitation
must be foreseeable within a reasonable time.’’ (Internal
quotation marks omitted.) In re Eden F., 250 Conn. 674,
706, 741 A.2d 873, reargument denied, 251 Conn. 924,
742 A.2d 364 (1999).
In assessing whether a parent can achieve personal
rehabilitation within a reasonable time frame, the trial
court is accorded substantial deference. ‘‘We do not
examine the record to determine whether the trier of
fact could have reached a conclusion other than the
one reached. . . . [O]n review by this court every rea-
sonable presumption is made in favor of the trial court’s
ruling.’’ (Internal quotation marks omitted.) In re Jor-
dan T., supra, 119 Conn. App. 755.
In this case, the court heard testimony, reviewed the
psychological evaluation and the social study, and
found by clear and convincing evidence that the respon-
dent had failed to rehabilitate to the degree required
by § 17a-112 (j) (3) (B) (i). Specifically, the court found
that the respondent had ‘‘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 the children, she could assume a responsible
position in the lives of the children, in that she has been
inconsistent in seeking and successfully completing
programs that would address her ongoing needs and
ensure a stable home and life experience for her chil-
dren.’’ Against this background, the court concluded
that the respondent had ‘‘not been able to establish a
track record of successfully completing these programs
and gaining the stability needed to raise two young
girls.’’
Ines Schroeder, a court-appointed psychologist who
evaluated the respondent’s case in October, 2012, and
August, 2013, testified to her observations and conclu-
sions at trial. In Schroeder’s initial assessment, dated
October 15, 2012, she was unable to provide a recom-
mendation as to whether reunification was advisable.
Instead, she directed the court’s attention to several
factors both in favor of reunification and against it.
Later, however, in her updated evaluation, dated August
12, 2013, Schroeder advised against further efforts at
reunification. Schroeder concluded, upon further evalu-
ation after interviewing the respondent a second time,
that the respondent would need ‘‘at least a year to show
stability in her sobriety and mental health treatment as
well as to show consistency in her employment and
living arrangements.’’
Schroeder thus opined that, although the respondent
was making progress with her problems with alcohol
and in securing employment, she would need additional
time to address her mental health problems, so as to
reduce the likelihood of future relapses. Schroeder fur-
ther testified that she had gathered additional informa-
tion regarding the circumstances of the children, and
upon that basis, she concluded that it would not be
beneficial for the children to wait longer for the respon-
dent to stabilize.7
Testimony by the respondent’s witnesses also sug-
gested she would benefit from continued treatment.
Nora Cleary, the respondent’s case manager at the Elm
City Women and Children Center in New Haven, testi-
fied that the respondent had been receiving inpatient
treatment under her supervision at the center for
approximately three months prior to trial, and that she
appeared to be doing well. Cleary testified, however,
that although the respondent had been following the
center’s rules and had not relapsed, she continued to
suffer from depression. Cleary attributed the respon-
dent’s depression, in part, to the turmoil associated
with the loss of her children. Cleary testified that the
respondent would benefit from additional time at the
center to continue working through her issues. She
based this conclusion on her individual assessment of
the respondent, as well as on her general understanding
that the ‘‘more sober time that people have under their
belt the better.’’
On appeal, the respondent directs our attention to
the testimony of Schroeder and Cleary, arguing that
such evidence indicated that, by the time of trial, she
had sought treatment to control her alcohol abuse and
had made significant progress toward rehabilitation. In
addition, she argues that the court failed to make spe-
cific findings as to her past participation in various
programs or as to what she claims to have been her
valid reasons for failing to complete those programs.
In essence, the respondent argues that the court disre-
garded or undervalued evidence she deems significant,
while relying on other evidence to reach its conclusion.
‘‘Our function as an appellate court is to review and
not retry the proceeding . . . . The probative force of
conflicting evidence is for the trier to determine.’’ (Inter-
nal quotation marks omitted.) In re Victoria B., 79
Conn. App. 245, 262, 829 A.2d 855 (2003). There was
evidence presented to the court that suggested that the
respondent has made unsuccessful attempts to control
her alcohol abuse and that problems stemming from
alcohol abuse had thwarted her efforts to reunite with
her children and live a productive life. Although there
was evidence that the respondent had made progress
at the time of trial, there was also evidence that she
would need additional time to attain stability in her
sobriety and her mental health treatment. In light of
such evidence, the court found that the respondent’s
problems were ‘‘ongoing’’ and that she was unable to
provide necessary care for her children.
The respondent argues that rehabilitation does not
require a parent to assume full responsibility for a child,
without the aid of available support systems. See In re
Migdalia M., 6 Conn. App. 194, 203, 504 A.2d 533, cert.
denied, 199 Conn. 809, 508 A.2d 770 (1986). While we
agree that the standard is not full rehabilitation, the
parent must demonstrate more than some rehabilita-
tion. In re Victoria B., supra, 79 Conn. App. 254. More-
over, ‘‘[i]n assessing rehabilitation, the critical issue is
not whether the parent has improved [her] ability to
manage [her] own life, but rather whether [she] has
gained the ability to care for the particular needs of the
[children] at issue.’’ (Internal quotation marks omitted.)
Id., 255. Although there was evidence before the court
that the respondent had made efforts to achieve per-
sonal stability, the court had reasonable concerns that
her degree of rehabilitation was not such that she would
be able to assume the care of her children and address
their needs within a reasonable time.
The respondent also argues that alcohol abuse,
‘‘standing alone,’’ does not support termination of
parental rights on lack of rehabilitation grounds. Even
assuming that that is true, the evidence before the court
suggested that the respondent had been struggling with
several issues—her mental health, abuse of alcohol,
and lack of proper housing. The court found that the
respondent had been inconsistent in addressing ‘‘her
ongoing needs.’’ Thus, the respondent’s argument, that
alcohol abuse was the sole basis for the court’s finding
of failure to rehabilitate, is unfounded.
We conclude that the evidence at trial was sufficient
to support the court’s finding that despite the respon-
dent’s ongoing participation in several treatment pro-
grams, she had failed to achieve the degree of stability
necessary to assume parental responsibility for her
children.
II
The respondent next claims error in the dispositional
phase of the challenged proceeding on the basis of
alleged deficiencies in the court’s determination that
termination of her parental rights was in the best inter-
ests of her two children. The court’s determination, she
asserts, was based solely upon its finding under § 17a-
112 (k) (4) concerning the children’s positive relation-
ship with and likely future adoption by their preadoptive
foster parents, without considering or making written
findings as to the children’s feelings and emotional ties
with respect to her, as expressly required by that same
statutory subsection. The petitioner acknowledges that
the court did not make an express finding as to either
child’s feelings and emotional ties with respect to the
respondent, but nonetheless argues that the court’s
memorandum of decision reflects that it ‘‘implicitly’’
considered the parent-child relationship. We agree with
the respondent that the trial court’s findings were
legally deficient because they failed to meet the manda-
tory requirements of § 17a-112 (k) (4).8
We begin by setting forth the appropriate standard
of review and the applicable legal principles. To review
the respondent’s claim we must determine whether the
court correctly applied the law, and therefore our
review is plenary. See Copas v. Commissioner of Cor-
rection, 234 Conn. 139, 152–53, 662 A.2d 718 (1995)
(mixed questions of fact and law, which require applica-
tion of legal standard to fact determinations, require
plenary review); see also State v. Pare, 253 Conn. 611,
621–22, 755 A.2d 180 (2000) (court’s failure to follow
mandatory statutory provisions raises question of law,
and thus review is plenary).
In seeking termination of parental rights, the peti-
tioner has the burden of proving, by clear and convinc-
ing evidence, both that statutory grounds for
termination exist and that termination is in the best
interests of the child. In re Juvenile Appeal (Anony-
mous), 177 Conn. 648, 675–76, 420 A.2d 875 (1979); In
re Sheena I., 63 Conn. App. 713, 725, 778 A.2d 997
(2001); see also General Statutes § 17a-112 (j). ‘‘After
an adjudicatory determination that a ground for the
termination of parental rights has been established,
§ 17a-112 [k]9 requires the trial court to make disposi-
tional findings on each of [seven] enumerated criteria
to assure that termination is in the best interest of
the child.’’ (Emphasis added; footnote altered.) In re
Romance M., 229 Conn. 345, 354–55, 641 A.2d 378 (1994);
see also In re Victoria B., supra, 79 Conn. App. 258;
In re Jonathon G., 63 Conn. App. 516, 528, 777 A.2d
695 (2001).
Although neither the statute nor the case law interpre-
ting it expressly requires the trial court to rely upon its
mandatory findings as to any particular factor or factors
as the explicit basis for its ultimate decision whether
to terminate parental rights; In re Eden F., supra, 250
Conn. 687–95; both the statute and controlling case
law make it clear that the trial court has a mandatory
obligation to consider and make written findings as to
all such factors in the course of making that ultimate
decision.10
Relevant to the respondent’s claim in this case is
§ 17a-112 (k) (4), which provides that the court ‘‘shall
consider and shall make written findings regarding . . .
the feelings and emotional ties of the child with respect
to the child’s parents, any guardian of such child’s per-
son and any person who has exercised physical care,
custody or control of the child for at least one year and
with whom the child has developed significant emo-
tional ties . . . .’’ The respondent argues that the
court’s findings do not comply with § 17a-112 (k) (4)
because they fail to address the children’s feelings and
emotional ties with respect to her. Instead, she asserts,
in considering subdivision (4), the court focused exclu-
sively on the children’s relationship with and prospec-
tive adoption by the preadoptive foster parents. We
agree with the respondent.
Here, before reaching its ultimate conclusion as to
the children’s best interests, the court correctly listed
the seven statutory factors set forth in § 17a-112 (k)
and made brief findings as to limited aspects of each
such factor. As to the fourth factor, § 17a-112 (k) (4),
the court’s entire finding was stated as follows: ‘‘[B]oth
children have been placed together with a preadoptive
resource who has expressed a willingness to adopt both
girls. They are comfortable, secure and safe.’’ This find-
ing, so articulated, is utterly unresponsive to the manda-
tory statutory requirement that the court consider and
make written findings as to ‘‘the feelings and emotional
ties of the child with respect to the child’s parents
. . . .’’ General Statutes § 17a-112 (k) (4).
We are mindful, of course, that the court’s memoran-
dum of decision must be read and considered in its
entirety. See In re Halle T., 96 Conn. App. 815, 839–42,
902 A.2d 670 (court considered respondent’s care for
child and efforts at rehabilitation and found termination
was in child’s best interests), cert. denied, 280 Conn.
924, 908 A.2d 1087 (2006); In re Aziza S.-B., supra, 138
Conn. App. 655–59 (court did not fail to consider parent-
child relationship). Here, however, the court’s abbrevi-
ated decision contains no reference at all, either express
or implied, to the children’s feelings or emotional ties
with respect to the respondent.11 The petitioner argues
that such consideration is evidenced by the court’s ref-
erence in its decision to Nevaeh’s commitments in 2008,
2009, and 2012.12 The court’s adjudicatory finding with
respect to Nevaeh’s previous removals from the respon-
dent, however, is utterly silent as to Nevaeh’s feelings
or emotional ties with respect to the respondent. Fur-
thermore, of course, the court’s fleeting reference to
Nevaeh’s commitments sheds absolutely no light on the
feelings and emotional ties of Janiyah with respect to
the respondent.13
The trial court’s decision, read in its totality, simply
contains no finding at all concerning the feelings and
emotional ties of either child with respect to the respon-
dent, and thus gives no evidence that the court consid-
ered that critical issue, as the law required it to, in
making the delicate, life-altering determination that ter-
mination of the respondent’s parental rights was in the
children’s best interests. In the absence of such consid-
eration and related findings, the court was not empow-
ered to reach, much less to decide, whether it was
in the best interests of the children to terminate the
respondent’s parental rights. See General Statutes
§ 17a-112. Because the court failed to make the manda-
tory statutory findings, we conclude that the court’s
best interests determination must be reversed.
The judgments are reversed in part and the case is
remanded for further proceedings before a different
judicial authority on the dispositional phase of the ter-
mination proceeding. The judgments are affirmed in all
other respects.
In this opinion the other judges 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.
** November 24, 2014, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
The petitioner also petitioned for and was granted termination of the
parental rights of the fathers of the two children. Neither of the fathers
has appealed the trial court’s decision and therefore, the facts relating to
termination of their rights are not addressed in this opinion. We refer in
this opinion to the respondent mother as the respondent.
2
The record indicates that the respondent was arrested for interfering
with an officer and failure to appear.
3
Counsel for the children adopted the petitioner’s brief on appeal.
4
The respondent had previously sought treatment at the New Life Center,
the Fresh Start Program and Coventry House, and was currently engaged
in treatment at the Elm City Center at the time of trial.
5
The petitioner also argues that the evidence in the record suggests that
as of the date the termination petition was filed in February, 2013, the
respondent had failed to maintain her sobriety. ‘‘In the adjudicatory phase,
the court may rely on events occurring after the date of the filing of the
petition to terminate parental rights when considering the issue of whether
the degree of rehabilitation is sufficient to foresee that the parent may
resume a useful role in the child’s life within a reasonable time.’’ (Emphasis
omitted; internal quotation marks omitted.) In re Jennifer W., 75 Conn. App.
485, 495, 816 A.2d 697, cert. denied, 263 Conn. 917, 821 A.2d 770 (2003).
Here, the court’s adjudicatory determination is premised on the respondent’s
failure to attain ‘‘such a degree of personal rehabilitation’’ as is necessary
to assume a responsible position in the lives of her children.
6
General Statutes § 17a-112 (j) provides: ‘‘The Superior Court, upon notice
and hearing as provided in sections 45a-716 and 45a-717, may grant a petition
filed pursuant to this section if it finds by clear and convincing evidence
that (1) the Department of Children and Families has made reasonable
efforts to locate the parent and to reunify the child with the parent in
accordance with subsection (a) of section 17a-111b, unless the court finds
in this proceeding that the parent is unable or unwilling to benefit from
reunification efforts, except that such finding is not required if the court
has determined at a hearing pursuant to section 17a-111b, or determines at
trial on the petition, that such efforts are not required, (2) termination is
in the best interest of the child, and (3) (A) the child has been abandoned
by the parent in the sense that the parent has failed to maintain a reasonable
degree of interest, concern or responsibility as to the welfare of the child;
(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, or (ii) is
found to be neglected or uncared for and has been in the custody of the
commissioner for at least fifteen months 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.’’
7
Schroeder’s evaluation indicates that she conducted interviews with the
children’s foster parents and had telephone contact with Nevaeh’s therapist.
‘‘[N]either of the children was seen individually to discuss their memories
[of the respondent];’’ however, Schroeder did observe the respondent and
Janiyah interact in a parent-child session scheduled for that purpose.
8
Additionally, the respondent alleges error in the court’s determination
as to timely and reasonable efforts under subdivisions (k) (1) and (2) of
§ 17a-112 respectively. Because we decide the court erred in failing to make
a finding under § 17a-112 (k) (4), we do not reach the respondent’s addi-
tional claims.
9
General Statutes § 17a-112 (k) provides that in nonconsensual termina-
tion cases, ‘‘the court shall consider and shall make written findings regard-
ing: (1) The timeliness, nature and extent of services offered, provided and
made available to the parent and the child by an agency to facilitate the
reunion of the child with the parent; (2) whether the Department of Children
and Families has made reasonable efforts to reunite the family pursuant to
the federal Adoption Assistance and Child Welfare Act of 1980,1 as amended;
(3) the terms of any applicable court order entered into and agreed upon
by any individual or agency and the parent, and the extent to which all
parties have fulfilled their obligations under such order; (4) the feelings and
emotional ties of the child with respect to the child’s parents, any guardian
of such child’s person and any person who has exercised physical care,
custody or control of the child for at least one year and with whom the
child has developed significant emotional ties; (5) the age of the child; (6)
the efforts the parent has made to adjust such parent’s circumstances,
conduct, or conditions to make it in the best interest of the child to return
such child home in the foreseeable future, including, but not limited to, (A)
the extent to which the parent has maintained contact with the child as
part of an effort to reunite the child with the parent, provided the court
may give weight to incidental visitations, communications or contributions,
and (B) the maintenance of regular contact or communication with the
guardian or other custodian of the child; and (7) the extent to which a
parent has been prevented from maintaining a meaningful relationship with
the child by the unreasonable act or conduct of the other parent of the
child, or the unreasonable act of any other person or by the economic
circumstances of the parent.’’ (Emphasis added.)
10
In contrast, no such statutory requirement exists in a consensual termi-
nation. Cf. In re Bruce R., 234 Conn. 194, 201–208, 662 A.2d 107 (1995)
(contrasting best interests determination in nonconsensual and consensual
terminations under General Statutes § 45a-717). The court’s best interests
determination in a nonconsensual termination requires consideration of all
statutorily delineated factors because there, unlike in a consensual termina-
tion, the parent’s constitutionally protected interest in maintaining a relation-
ship with her child is at stake.
11
Further underscoring the court’s failure to consider the parent-child
bond, as required under the statute, is the court’s singular focus on the
proposed future placement of the children with the foster family. In its
truncated ‘‘Best Interests’’ subsection of its decision, following its statutory
findings, the court stated: ‘‘The children have done well in their foster home.
The foster parents wish to adopt the children and the children are closely
attached to them as well as an older ‘sister’ who, herself, is a product of
the foster system and aids in the care and nurturing of the children. The
children have been in a stable and nurturing environment with caregivers
who wish to have the children permanently.’’
12
Interestingly, with respect to the respondent’s argument that the court
improperly considered and gave undue weight to the children’s relationship
with the foster parents, the petitioner argues that § 17a-112 (k) (4)
‘‘require[d] the court to consider in the dispositional phase and make written
findings regarding the feelings and emotional ties of the child’’ with respect
to the foster parents.
13
Our review of the record conveys that there was evidence before the
court that Janiyah had an emotional bond with the respondent. Counsel for
the respondent highlighted this evidence for the court in closing argument:
‘‘Again, Janiyah has been known to have a bond with [the respondent]
because her case hasn’t been going on anywhere near as long as Nevaeh’s
[has]. And I believe it’s Janiyah’s first time down, not the third or fourth.
So I think there’s an attempt to have a package deal, and children should
be judged separately. And I am not hearing from the testimony we have
that Janiyah’s having anywhere near the level of problems that Nevaeh has.
So, especially in regards to Janiyah, I don’t think the best interests have
been met. The child could easily be returned to [her] now. . . . [The respon-
dent has] made great strides . . . .’’