In re Shane M. , 148 Conn. App. 308 ( 2014 )

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IN RE SHANE M.*
(AC 35819)
Alvord, Bear and Pellegrino, Js.
Argued November 14, 2013—officially released February 3, 2014**
(Appeal from Superior Court, judicial district of
Hartford, Juvenile Matters, Burgdorff, J.)
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).
Robert J. Moore, for the minor child.
Opinion
PELLEGRINO, J. The respondent father appeals from
the judgment of the trial court terminating his parental
rights with respect to his minor child, Shane M.1 On
appeal, the respondent argues the court improperly (1)
terminated his parental rights pursuant to General Stat-
utes § 17a-112 (j) based on an overly broad interpreta-
tion of the 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. We conclude that the court did not err in granting
the petition to terminate the respondent’s parental
rights, and affirm the judgment.
After a trial, at which the respondent was represented
by counsel, the court in its well reasoned and compre-
hensive memorandum of decision detailed the following
findings of fact and procedural history. The respondent
is the biological father of Shane M., who was born
on May 1, 2010. The petitioner, the Commissioner of
Children and Families (commissioner), initially became
involved with Shane shortly after he was born. The
commissioner filed a petition of neglect on August 23,
2010, based in part on a domestic incident between
Shane’s mother and the respondent. The court granted
the commissioner temporary custody of Shane on
November 24, 2010, and the court issued initial specific
steps to facilitate reunification on that date. On March
15, 2011, the respondent entered a plea of nolo conten-
dere to the petition of neglect, and the court ordered
final specific steps to facilitate the reunification of the
respondent and Shane.2
The respondent’s final specific steps included: (1)
cooperate and keep appointments with the Department
of Children and Families (department); (2) undergo
individual counseling with the goal of addressing issues
of depression and anger management; (3) undergo par-
enting counseling with the goals of learning appropriate
child development and becoming a safe and nurturing
parent; (4) cooperate with counseling recommenda-
tions regarding assessment and treatment; (5) submit
to substance abuse evaluations, treatment, and random
drug testing, with the time and method of testing at the
discretion of the department; (6) refrain from drug and
alcohol use; (7) avoid involvement with the criminal
justice system; and (8) cooperate with court-ordered
evaluations and testing. The commissioner filed a peti-
tion to terminate the respondent’s parental rights on
November 23, 2011.
The court considered the petition to terminate paren-
tal rights pursuant to § 17a-112 (j), noting the relevant
issues were: (1) whether the department made reason-
able efforts to reunite Shane and the respondent, or
whether the respondent was unable or unwilling to
benefit from reunification efforts; (2) whether the
respondent, after being provided with specific steps,
‘‘failed to achieve such degree of personal rehabilitation
as would encourage the belief that within a reasonable
period of time . . . such parent could assume a respon-
sible position in the life of [Shane]’’;3 and (3) whether
termination of parental rights was in the best interests
of Shane. After the court concluded that the department
had made reasonable efforts to reunite Shane and the
respondent,4 it considered whether the respondent, in
light of the specific steps, achieved a sufficient degree
of personal rehabilitation such that he could function
as a responsible parent. The court detailed the follow-
ing evidence.
The respondent underwent a clinical assessment at
Radiance Innovative Services (Radiance).5 A Radiance
therapist later recommended that the respondent pur-
sue long term therapy and participate in a medication
evaluation to determine if he needed to be treated with
medication. The respondent, however, did not follow
these recommendations, and missed multiple appoint-
ments with Radiance. The respondent indicated that he
did not need these services because they were unneces-
sary. In March, 2012, Radiance reported that the respon-
dent was ‘‘less focused’’ during individual counseling
and that his counselor was concerned about the respon-
dent’s ability to parent in light of his anxiety. The
respondent also completed a parenting program
through Radiance and engaged in supervised visitation
with Shane. A provider recommended a parenting men-
tor to help the respondent further develop his parenting
skills. The respondent refused the additional assistance,
claiming he did not need the mentor because he was
fully capable of raising Shane.
The respondent attended individual counseling at
Community Health Resources. The court found, how-
ever, that the respondent did not engage in counseling
and was not fully committed to working on his individ-
ual issues. The respondent stated to his provider at
Community Health Resources that he was only
attending counseling to appease the department. On
December 27, 2012, the program recommended no fur-
ther treatment, despite the fact that the respondent
continued to refuse to participate in medication evalu-
ations.
The department also referred the respondent to the
Non-Violence Alliance Program for domestic violence
counseling. At this program, the respondent stated he
did not need domestic violence counseling, as he was
the victim. A different domestic violence program that
the respondent attended reported that he tended to
blame others for his problems.
In order to address concerns that the respondent had
a substance abuse problem, the specific steps issued
by the court included a prohibition on the use of drugs
and alcohol, and directed the respondent to submit to
random drug testing at the discretion of the department.
After the final specific steps were issued, however, the
respondent tested positive for marijuana use on four
separate occasions.6 As a result, the respondent was
referred to another provider for a substance abuse eval-
uation. He missed four appointments with this provider,
and was discharged from the substance abuse treatment
program. The respondent requested that he be referred
to another program. At this second substance abuse
program, the respondent failed an initial hair follicle
drug test and refused to participate in group therapy.
The respondent continued to refuse to submit to a hair
follicle drug test after December, 2012, despite depart-
ment requests that he do so.
As part of its determination regarding the respon-
dent’s degree of rehabilitation pursuant to § 17a-112 (j)
(B), the court also relied upon the testimony of Derek
Franklin, a clinical psychologist, whom the court found
highly credible. Franklin recommended treatment for
the respondent’s psychological issues, as well as his
substance abuse. Franklin emphasized the need to iden-
tify medication that could be helpful in managing the
respondent’s diagnoses. He specifically voiced his con-
cerns over the respondent’s failure to engage in sub-
stance abuse treatment, his reluctance to sufficiently
address his ongoing anger issues, and his refusal to
undergo a medication evaluation.
After considering the evidence, the court found that
the respondent’s level of rehabilitation ‘‘falls far short
of that which would reasonably encourage the belief
that at some future date [he] could assume a safe, reli-
able and responsible position in Shane’s life given his
age and needs.’’ Although the court recognized that
the respondent complied with some steps, it ultimately
found the respondent ‘‘fail[ed] to adequately address
[his] substance abuse, mental health and domestic vio-
lence issues.’’7 The court found the respondent had not
improved his ability to parent Shane.
The court, in its decision, noted that the respondent
failed to acknowledge his personal issues that nega-
tively affected his ability to parent. Specifically, the
court highlighted the respondent’s repeated assertions
that he did not need any assistance with his parenting,
substance abuse, or mental health issues, and his state-
ment that he was engaging in services only to appease
the department. The court stated it was ‘‘[m]ost con-
cerning and troubling’’ that the respondent asserted
that he no longer used marijuana, because this assertion
was contradicted by the multiple failed drug tests and
the respondent’s refusal to take a hair follicle test. The
court inferred that the refusal to take any additional
drug tests was due to the fact that the respondent was
still abusing illegal substances.8
The respondent’s refusal to accept the services of a
parenting mentor, refusal to participate in a medication
evaluation, as well as his claims that he did not need
assistance or abuse drugs, ‘‘clearly demonstrate[d] to
the court that [the respondent] has not gained sufficient
insight or acknowledgement of his ongoing issues and
is, therefore, unable to put his son’s interests before
his own. . . . [The respondent’s] continual refusal to
cooperate with . . . court ordered recommendations
when doing so would aid in his effort to be reunited
with his son, is deeply troubling.’’ The court then found
that the department had proven, by clear and convinc-
ing evidence, that the respondent has not exhibited the
requisite degree of personal rehabilitation to warrant
reunification and, after considering the best interests
of the child, the court terminated the respondent’s
parental rights with respect to Shane. The respondent
filed a timely appeal.
I
‘‘A hearing on a petition to terminate parental rights
consists of two phases, adjudication and disposition.
. . . In the adjudicatory phase, the trial court deter-
mines whether one of the statutory grounds for termina-
tion of parental rights [under § 17a-112 (j)] exists by
clear and convincing evidence.’’ (Internal quotation
marks omitted.) In re Janazia S., 112 Conn. App. 69,
81–82, 961 A.2d 1036 (2009). Section 17a-112 (j) provides
in relevant part: ‘‘The Superior Court, upon notice and
hearing . . . may grant a petition [to terminate paren-
tal rights] if it finds by clear and convincing evidence
that . . . (3) . . . (B) the child . . . has been found
. . . to have been neglected or uncared for in a prior
proceeding . . . and the parent of such child has been
provided specific steps to take to facilitate the return
of the child to the parent . . . and [the parent] has
failed to achieve such degree of personal rehabilitation
as would encourage the belief that within a reasonable
amount of time, considering the age and needs of the
child, such parent could assume a responsible position
in the life of the child . . . .’’ ‘‘If the trial court deter-
mines that a statutory ground for termination exists, it
proceeds to the dispositional phase. In the dispositional
phase, the trial court determines whether termination
is in the best interests of the child.’’ (Internal quotation
marks omitted.) In re Janazia S., supra, 82.
A
The respondent argues that the court misinterpreted
the term ‘‘rehabilitation’’ in § 17a-112 (j) (3) (B), and that
this improper interpretation led the court to consider
evidence that ‘‘[does] not apply as a matter of law.’’
The specific evidence at issue is (1) the court’s finding
that the respondent repeatedly asserted he did not need
assistance and his statement that he was engaging in
the recommended programs only to ‘‘appease’’ the
department; (2) the respondent’s refusal to work with
a parenting mentor; (3) the respondent’s refusal to
undergo a medication evaluation; and (4) the inference
that the respondent continued to abuse marijuana
because he refused to take a drug test.
The respondent claims that the court’s interpretation
of the term rehabilitation in § 17a-112 (j) (3) (B) was
unreasonably broad, and therefore the previously enu-
merated evidence was considered improperly. The
respondent does not specifically explain how the court
misinterpreted the term ‘‘rehabilitation,’’ does not
engage in a traditional exercise of statutory interpreta-
tion, and does not offer his own reasonable interpreta-
tion of that term. He claims it was improper for the
court to rely on the four pieces of evidence which ‘‘were
not grounds alleged in the petition [for the termination
of parental rights] and were not argued by [the commis-
sioner] at the conclusion of evidence.’’ Moreover, the
respondent relies on our Supreme Court’s recent deci-
sion in In re Elvin G., 310 Conn. 485, 78 A.3d 797 (2013),
to argue that rehabilitation, as contemplated in § 17a-
112 (j) (3) (B), ‘‘must relate directly to specific steps.’’
We interpret the respondent’s argument as claiming
that the court erred because it misinterpreted the term
‘‘rehabilitation’’ as including considerations not pro-
vided for in the specific steps.9
The respondent raises a question of statutory inter-
pretation, over which we exercise plenary review. In
re Elvin G., supra, 310 Conn. 499. We are guided by
our previous interpretation of the term rehabilitation
in § 17a-112 (j) (3) (B). ‘‘Rehabilitate means to restore
. . . to a useful and constructive place in society
through social rehabilitation. . . . Likewise, [f]ailure
to rehabilitate is defined as the failure of a parent to
achieve expectations following the adjudication and
disposition of the prior neglect [proceeding].’’ (Internal
quotation marks omitted.) In re Jazmine B., 121 Conn.
App. 376, 391, 996 A.2d 286, cert. denied, 297 Conn.
924, 998 A.2d 168 (2010). Furthermore, in determining
whether a party has achieved these expectations, and
therefore has been rehabilitated, ‘‘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 the specific expectations
ordered by the court or imposed by the department.’’
(Emphasis in original; internal quotation marks omit-
ted.) In re Emerald C., 108 Conn. App. 839, 847, 949
A.2d 1266, cert. denied, 289 Conn. 923, 958 A.2d 150(2008). This leads to the conclusion that the term reha-
bilitation in § 17a-112 (j) (3) (B) is not limited to the
conduct contemplated in the specific steps. The court
therefore did not err in considering evidence that is not
explicitly detailed in the specific steps.
We also note that the respondent’s reliance on In re
Elvin G. is misplaced. The issue in that case was
‘‘whether a prior order of specific steps to aid in reunifi-
cation is a necessary prerequisite for any termination
of parental rights that is based solely on a parent’s
failure to rehabilitate.’’ In re Elvin G., supra, 310 Conn.
487. Our Supreme Court concluded that parents must
be provided with specific steps whenever parental
rights are terminated pursuant to either § 17a-112 (j)
(3) (B) (i) or (ii). Id., 506. The respondent does not
contest that he was provided with specific steps in the
present action, but argues that In re Elvin G. stands
for the proposition that the termination of parental
rights must be based on grounds contained in the spe-
cific steps. On the contrary, in In re Elvin G., supra,
508, our Supreme Court reaffirmed the longstanding
principle, as articulated in In re Melody L., 290 Conn.
131, 150–51, 962 A.2d 81 (2009), that a finding of failure
to achieve personal rehabilitation can be based on con-
duct unrelated to the specific steps issued. As a result,
the court did not improperly interpret the term rehabili-
tation by considering evidence that allegedly was not
encompassed by the specific steps.
B
Next, the respondent claims that the evidence pre-
sented was insufficient to provide a basis to terminate
his parental rights. He argues that because he did not
have an initial opportunity to parent Shane, his ability
to parent cannot be rehabilitated or restored as required
by § 17a-112 (j) (3) (B). Furthermore, he claims that
without an initial opportunity to parent Shane, the evi-
dence presented at trial was insufficient to prove he
failed to achieve rehabilitation because the evidence
set forth in part I A of this opinion was not included
in the specific steps and therefore did not relate to the
respondent’s rehabilitation. We reject that argument
and conclude that the evidence presented at trial was
sufficient for the court to find that the respondent did
not achieve a sufficient degree of personal rehabili-
tation.
We begin by addressing the respondent’s arguments
that the court’s decision was improper because the
respondent never had an initial opportunity to parent
Shane, and because the evidence upon which the court
relied does not relate to the specific steps. While the
term ‘‘rehabilitate’’ as used in § 17a-112 (j) (B) (3) has
been defined as ‘‘to restore’’ the respondent’s ability to
act as a responsible parent, we have also explained that
the standard for rehabilitation is set by the ‘‘expecta-
tions following the adjudication and disposition of the
prior neglect [proceeding].’’ (Internal quotation marks
omitted.) In re Jazmine B., supra, 121 Conn. App. 391.
In other words, whether a parent has rehabilitated
under the statute depends on whether he has met the
expectations giving rise to the specific steps. This stan-
dard does not depend on whether a parent has had a
previous opportunity to parent, as the respondent
argues. We therefore conclude that the evidence pre-
sented was not insufficient merely because the respon-
dent allegedly did not have a previous opportunity to
parent Shane.
The respondent’s claim that the court improperly ter-
minated his parental rights based on insufficient evi-
dence because the evidence set forth in part I A of this
opinion was not contemplated by the specific steps has
no merit. We have explained that ‘‘[t]he specific steps
facilitate, but do not guarantee, the return of the child
to the parent. . . . Although a parent may have partici-
pated in the programs recommended pursuant to the
specific steps ordered, a court may properly find that
the parent has failed to achieve rehabilitation. . . . In
other words, a finding of rehabilitation is not based
on a mechanistic tabulation of whether a parent has
undertaken specific steps ordered.’’ (Citations omitted;
emphasis omitted.) In re Destiny R., 134 Conn. App.
625, 627, 39 A.3d 727, cert. denied, 304 Conn. 932, 43
A.3d 660 (2012). ‘‘In 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 quotation marks omitted.) In re Melody L.,
supra, 290 Conn. 150–51; see also In re Emerald C.,
supra, 108 Conn. App. 847. The respondent’s argument
that the court’s decision was improper because the
evidence does not relate to the specific steps therefore
has no basis in our case law.
C
Finally, we address the merits of the respondent’s
insufficiency of the evidence claim. ‘‘[W]e review a trial
court’s finding that a parent has failed to achieve suffi-
cient rehabilitation only for clear error.’’ In re Elvin
G., supra, 310 Conn. 499. ‘‘A finding is clearly erroneous
when although there is evidence to support it, the
reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed. In applying the clearly erroneous standard
to the findings of a trial court, we keep constantly in
mind that our function is not to decide factual issues
de novo.’’ (Internal quotation marks omitted.) In re
Janazia S., supra, 112 Conn. App. 81. ‘‘We do not exam-
ine the record to determine whether the trier of fact
could have reached a conclusion other than the one
reached. . . . [E]very reasonable presumption is made
in favor of the trial court’s ruling. . . . We also recog-
nize that the trial court has an ability superior to our
own to evaluate the evidence because of its firsthand
opportunity to observe the parties and to hear their
testimony.’’ (Internal quotation marks omitted.) In re
Ashley M., 82 Conn. App. 66, 71, 842 A.2d 624 (2004).
In order for a court to terminate parental rights for a
parent’s failure to achieve personal rehabilitation, § 17a-
112 (j) (B) (3) ‘‘requires the court to find, by clear and
convincing evidence, that the level of rehabilitation [the
respondent] has achieved, if any, falls short of that
which would reasonably encourage a belief that at some
future date [the respondent] can assume a responsible
position in [the] child’s life.’’ (Internal quotation marks
omitted.) In re Melody L., supra, 290 Conn. 149. Failure
to complete the specific steps is evidence that the
respondent has not achieved a sufficient degree of reha-
bilitation. In re Ashley M., supra, 82 Conn. App. 72.
Moreover, a respondent’s failure to acknowledge the
underlying personal issues that form the basis for the
department’s concerns indicates a failure to achieve a
sufficient degree of personal rehabilitation. 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(2012) (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 rehabili-
tation’’), cert. denied, 273 Conn. 938, 875 A.2d 43 (2005);
In re Shiela J., 62 Conn. App. 470, 481, 771 A.2d 244(2001) (respondent failed to recognize her need for
recommended counseling).
The court’s finding that the evidence was sufficient
to terminate the respondent’s parental rights was not
clearly erroneous. The court’s decision was based on
the fact that the respondent failed to ‘‘adequately
address [his] substance abuse, mental health, and
domestic violence issues . . . .’’ There is extensive
support in the record for this finding. For example, the
commissioner presented evidence that the respondent
did not comply with the specific steps. The specific
steps, inter alia, directed the respondent to cooperate
with counseling recommendations, refrain from drug
and alcohol use, submit to substance abuse evaluations,
participate in treatment, and undergo random drug test-
ing at the department’s discretion. The respondent’s
continued use of marijuana and his refusal to undergo
both drug testing and the recommended medication
assessment violated these specific steps.10 There is also
evidence in the record, including the testimony of
Franklin, which demonstrated that the respondent
failed to acknowledge the personal issues that hindered
his ability to parent. A domestic violence program coun-
selor found the respondent tended to blame others for
his problems. The respondent himself stated he did not
need the recommended services, and that he was only
participating to appease the department. Based on the
evidence that the respondent violated the specific steps
and would not acknowledge his underlying personal
issues that led to the order of temporary custody and
subsequent neglect adjudication, it was not clearly erro-
neous for the court to conclude that the respondent
had not achieved the level of rehabilitation that would
encourage the belief that in a reasonable amount of
time he could assume the role of a responsible parent.
See In re Christopher B., supra, 117 Conn. App. 784;
In re Jermaine S., supra, 86 Conn. App. 834; In re
Ashley M., supra, 82 Conn. App. 72.11
II
The respondent also claims that it was improper for
the court to infer that he continued to use drugs because
he refused to submit to a hair follicle drug test. This
claim is based on Practice Book §§ 32a-1 (h)12 and 35a-
7A,13 as well as General Statutes § 46b-137 (d).14 The
respondent concedes that he did not object to this
adverse inference at trial, nor did he file any motions
related to this inference after the court issued its memo-
randum of decision. As a result, the respondent seeks
review under State v. Golding, 213 Conn. 233, 239–40,
567 A.2d 823 (1989). We conclude that the respondent
has not demonstrated that his claim is of a constitu-
tional magnitude, and therefore it cannot be reviewed.
‘‘Under Golding, a [respondent] can prevail on a claim
of constitutional error not preserved at trial only if all
of the following conditions are met: (1) the record is
adequate to review the claim of error; (2) the claim is
of constitutional magnitude alleging deprivation of a
fundamental right; (3) the alleged constitutional viola-
tion clearly exists and clearly deprived the [respondent]
of a fair trial; and (4) if subject to harmless error analy-
sis, the state has failed to demonstrate harmlessness of
the alleged constitutional violation beyond a reasonable
doubt.’’ (Internal quotation marks omitted.) In re Azar-
eon Y., 309 Conn. 626, 634, 72 A.3d 1074 (2013). The
respondent ‘‘must meet all four prongs of the Golding
analysis to be successful. . . . We are free, however,
to dispose of the claim by focusing on the condition
that appears most relevant under the circumstances of
the case.’’ (Citation omitted; internal quotation marks
omitted.) State v. Williams, 60 Conn. App. 575, 579, 760
A.2d 948, cert. denied, 255 Conn. 922, 763 A.2d 1043(2000). ‘‘The first two steps in the Golding analysis
address the reviewability of the claim, while the last
two steps involve the merits of the claim.’’ (Internal
quotation marks omitted.) In re Azareon Y., supra, 634–
35. If either of the first two prongs is not met, the claim
cannot be reviewed. State v. Bridget M., 124 Conn. App.
361, 367, 4 A.3d 1245 (2010).
‘‘The fact that [a respondent] has argued [that a] claim
is one of constitutional magnitude does not, alone, sat-
isfy the requirements of Golding.’’ (Internal quotation
marks omitted.) In re Giovanni C., 120 Conn. App. 277,
281, 991 A.2d 638 (2010). We previously have reasoned
that ‘‘not every deviation from the specific requirements
of the rules of practice presents an issue of constitu-
tional magnitude.’’ State v. Bangulescu, 80 Conn. App.
26, 36, 832 A.2d 1187, cert. denied, 276 Conn. 907, 840
A.2d 1171 (2003). An alleged violation of the rules of
practice, without a discussion of how that violation
also infringes on a constitutional right, is insufficient
to satisfy the second prong of Golding. State v. Bridget
M., supra, 124 Conn. App. 367–68. ‘‘Thus, we will discuss
any violation of the rules of practice only insofar as it
is relevant to [a] constitutional claim; any unpreserved
claim alleging a violation of the rules of practice has
no independent significance for purposes of [Golding]
review.’’ (Internal quotation marks omitted.) State v.
Bangulescu, supra, 36.
We conclude that the respondent has not demon-
strated that his claim is of a constitutional magnitude.
The respondent’s claim is based on alleged violations
of Practice Book §§ 32a-1 (h), 35a-7A, and General Stat-
utes § 46b-137. In order for this claim to be reviewable
under Golding, the respondent was required to explain
how a violation of either the statute or rules of practice
deprived him of a constitutionally protected right. See
State v. Bridget M., supra, 124 Conn. App. 367–68. This
explanation was not provided.
The respondent asserts that his claim ‘‘is grounded
on fundamental fairness’’ and the ‘‘fundamental notions
of fair play and notice,’’ citing the general principle that
‘‘termination of parental rights implicates a parent’s
fundamental interest.’’ Although we acknowledge that
a fundamental constitutional right is at stake in a pro-
ceeding to terminate parental rights; In re Elvin G.,
supra, 310 Conn. 500–501; the respondent does not
explain how a violation of Practice Book §§ 32a-1 (h),
35A-7, or General Statutes § 46b-137 specifically
infringes on that constitutional right. The respondent’s
argument does not explain, for example, how a court’s
failure to comply with Practice Book §§ 32a-1 or 35A-
7 alone also violates his fifth amendment rights, or
deprives him of his parental rights.15 General assertions
are insufficient to invoke Golding; we require that the
respondent ‘‘present an analysis based in law and tai-
lored to the unique circumstances surrounding the
claim that . . . [indicates] the claim is of constitutional
magnitude, alleging the deprivation of a fundamental
constitutional right.’’ State v. Elson, 125 Conn. App. 328,
354, 9 A.3d 731 (2010) (en banc), cert. granted on other
grounds, 300 Conn. 904, 12 A.3d 572 (2011). The respon-
dent does not meet his burden under the second prong
of Golding, and therefore this claim is not reviewable.
III
The respondent also contends that § 17a-112 (j) is
unconstitutionally vague as applied to him. He again
concedes this claim was not raised at trial and relies on
a Golding review.16 Accordingly, we follow the Golding
framework and guiding principles as detailed in part II
of this opinion. Although we determine this claim is
reviewable, the respondent is not entitled to relief
because he has not demonstrated that the alleged con-
stitutional violation clearly exists.
‘‘The void for vagueness doctrine is a procedural due
process concept that originally was derived from the
guarantees of due process contained in the fifth and
fourteenth amendments to the United States constitu-
tion.’’17 (Internal quotation marks omitted.) In re Jaz-
mine B., supra, 121 Conn. App. 389. ‘‘The doctrine [of
vagueness] requires statutes to provide fair notice of the
conduct to which they pertain and to establish minimum
guidelines to govern law enforcement.’’ (Internal quota-
tion marks omitted.) In re Michael L., 56 Conn. App.
688, 695–96, 745 A.2d 847 (2000). ‘‘[T]he minimum guide-
lines prong is applicable only where a statute is being
challenged as unconstitutional on its face . . . .’’
(Internal quotation marks omitted.) In re Jazmine B.,
supra, 389.
‘‘Legislative enactments carry with them a strong pre-
sumption of constitutionality, and a party challenging
the constitutionality of a validly enacted statute bears
the weighty burden of proving unconstitutionality
beyond a reasonable doubt. . . . A statute is not
unconstitutional merely because a person must inquire
further as to the precise reach of its prohibitions, nor
is it necessary that a statute list the exact conduct
prohibited. . . . The constitution requires no more
than a reasonable degree of certainty.’’ (Citation omit-
ted; internal quotation marks omitted.) Id., 390.
‘‘[B]ecause we assume that a man is free to steer
between lawful and unlawful conduct, we insist that
laws give the person of ordinary intelligence a reason-
able opportunity to know what is prohibited, so that
he may act accordingly.’’ (Internal quotation marks
omitted.) In re Michael L., supra, 56 Conn. App. 696.
‘‘[A] statute gives fair warning of what conduct it prohib-
its if it is reasonably specific and direct enough so
that a person of ordinary intelligence has a reasonable
opportunity to govern his or her behavior by reference
to the words of the statute together with available judi-
cial gloss.’’ (Internal quotation marks omitted.) Id., 697.
Section 17a-112 (j) (3) (B) allows for the termination
of parental rights due to a respondent’s failure to
achieve personal rehabilitation only after the respon-
dent has been issued specific steps to facilitate rehabili-
tation. ‘‘Specific steps provide notice . . . to a parent
as to what should be done to facilitate reunification
and prevent termination of rights.’’ In re Elvin G., supra,310 Conn. 507–508; see also In re Kamora W., supra,132 Conn. App. 188 (specific steps put respondent ‘‘on
notice’’). The specific steps are a ‘‘ ‘benchmark’ ’’ by
which the court will measure the respondent’s conduct
to determine whether termination is appropriate pursu-
ant to § 17a-112 (j) (3) (B). In re Stephen M., 109 Conn.
App. 644, 661, 953 A.2d 668 (2008). We acknowledge
that the court need not base its determination purely
on the respondent’s compliance with the specific steps.
In re Destiny R., supra, 134 Conn. App. 627. It is well
established judicial gloss, however, that ‘‘a court may
consider whether a 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 quotation marks omitted.) In re Melody L.,
supra, 290 Conn. 150–51.
On March 15, 2011, after the respondent entered a
plea of nolo contendere to the neglect petition, the
court read the specific steps to the respondent. The
respondent acknowledged that he needed to comply
with the steps in order to be reunited with Shane, and
that if he failed to comply with any step it could be
a basis for terminating his parental rights. As noted
previously in this opinion, the respondent failed to com-
ply with the specific steps. Specifically, he did not coop-
erate with counseling recommendations regarding
assessment and treatment, refused a random drug test,
and continued to use marijuana, as evidenced by several
failed drug tests. The specific steps issued to the respon-
dent provided him with notice of what was required
to achieve such degree of personal rehabilitation as
required by § 17a-112 (j) (3) (B), and the respondent
had a reasonable opportunity to comply. We conclude
a person of reasonable intelligence would have known
that refusing treatment recommendations, declining
drug tests, and continuing to use marijuana would be
a basis for terminating his parental rights under the
circumstances. Section 17a-112 (j) (3) (B) therefore was
not unconstitutionally vague as applied to the respon-
dent. Accordingly, the court did not err in terminating
the respondent’s parental rights.
The judgment is affirmed.
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.
** February 3, 2014, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
The court also terminated the parental rights of the respondent mother,
who has not appealed from that judgment. We refer to the respondent father
as the respondent in this opinion.
2
Shane was adjudicated neglected and committed to the care of the
commissioner on April 28, 2011, after Shane’s mother also pleaded nolo
contendere to the petition of neglect.
3
Section 17a-112 (j) (3) (B) (ii) also requires a finding that Shane had been
adjudicated neglected. The respondent did not appeal from the judgment of
neglect rendered after he pleaded nolo contendere.
4
In the alternative, the court found the respondent was unable to benefit
from the reunification efforts.
5
The court’s memorandum of decision refers to both Radiance Innovative
Services and Radiance Innovative Therapy. We refer to these two entities,
collectively, as Radiance.
6
The final specific steps were issued on March 15, 2011. The respondent
tested positive for marijuana on August 8, 2011, September 2, 2011, Septem-
ber 9, 2011, and September 16, 2011. He then tested positive for marijuana
in a hair follicle drug test administered on June 13, 2012. The respondent
has refused to submit to any additional hair follicle drug tests since Decem-
ber, 2012.
7
The court noted that the respondent’s therapist at Radiance was con-
cerned that the respondent had not benefitted from the psychiatric or domes-
tic violence services provided. This opinion was based on an incident in
November, 2011, at the home of respondent’s grandfather. During this inci-
dent, the respondent became upset, then poured gasoline on the floor of
the home and threatened to light it on fire. The respondent was arrested
for and convicted of disorderly conduct and given a suspended sentence.
This incident caused concern for the therapist at Radiance because it indi-
cated that the respondent had not benefitted from the services provided,
as this incident occurred after the respondent had undergone five months
of treatment at Radiance and completed two parenting programs.
8
The department reported that the respondent did not want to participate
in a hair follicle test because he did not want to cut his hair. In response,
the department offered to take a body hair sample instead. The respondent
again refused to take the test.
9
The commissioner characterizes the respondent’s claim as being that
the evidence was not relevant to § 17a-112 (j). The respondent, however,
concedes that the evidence at issue is relevant to a termination of parental
rights petition.
10
The respondent also argues that his marijuana use does not demonstrate
a lack of rehabilitation because possession of less than one half of an ounce
of marijuana is no longer a crime in Connecticut; instead, it is only a violation.
See State v. Menditto, 147 Conn. App. 232, 236, 80 A.3d 923 (2013), cert.
granted, Conn. , A.3d (2014). Aside from the fact that there is no
evidence in the record regarding what amount of marijuana the respondent
usually used, this argument is legally unpersuasive. Specific steps are not
categorical prohibitions on illegal activities; they are used to encourage
behavior that can enhance one’s ability to parent, as illustrated by the
fact that the specific steps directed the respondent to refrain from alcohol
consumption, something he can legally do. See In re Elvin G., supra, 310
Conn. 507–508 (specific steps provide guidance to facilitate reunification).
Furthermore, State v. Jimenez-Jaramill, 134 Conn. App. 346, 367–69, 38
A.3d 239, cert. denied, 305 Conn. 913, 45 A.3d 100 (2012), cited by the
respondent in support of his argument, relates to the applicability of the
federal constitution’s double jeopardy clause, and does not support the
proposition that violations—as opposed to crimes—are not indicative of an
inability to parent.
11
The respondent contends that the evidence supporting the court’s con-
clusion that he failed to achieve rehabilitation also was insufficient to con-
clude that termination of parental rights was in Shane’s best interests and the
least restrictive possible permanency plan. A court’s determination regarding
the best interests of a child is subject to the clearly erroneous standard of
review. In re Melody L., supra, 290 Conn. 163. The court based its decision
on the same evidence that demonstrated the respondent failed to achieve
rehabilitation, and found that the respondent is ‘‘in no better position today
to provide for Shane than [he was] as the time of the removal in November,
2010. The problems that led to the removal have not been rectified . . . .
Shane cannot wait indefinitely for the resolution of these issues. . . .
Shane’s best interests will not be served by reunifying [him] with [the respon-
dent].’’ As detailed previously in this opinion, we concluded that these
findings were supported by the record for purposes of determining whether
the respondent achieved a sufficient degree of rehabilitation. The court’s
decision regarding Shane’s best interests, which was based in part on the
same findings, similarly is not clearly erroneous.
12
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.’’
13
Practice Book § 35a-7A provides: ‘‘If a party requests that the judicial
authority draw an adverse inference from the parent’s or guardian’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 parents or guardian that an
adverse inference may be drawn from their failure to testify.’’
14
The language of General Statutes § 46b-137 (d) is substantially similar
to that of Practice Book § 32a-1 (h), but includes one exception that is not
relevant to this appeal.
15
The respondent’s reliance on In re Samantha C., 268 Conn. 614, 658,
847 A.2d 833 (2004), is unavailing, as it does not demonstrate that the
respondent’s claim is of a constitutional magnitude. The decision in In re
Samantha C. was not based on constitutional grounds. The court observed,
in response to a claim that the court should rely on fifth amendment jurispru-
dence in interpreting certain rules of practice that, that: ‘‘[T]he respondent’s
claim . . . does not appropriately rest on the fifth amendment; instead, it
rests on a rule of practice . . . . We cannot conclude . . . that a parent’s
right not to testify, which exists only by virtue of a rule or statute, and is
not constitutionally required, would, simply because of that enactment, also
carry with it a protection that is generally reserved for the fifth amendment.
The fact remains that the respondents in the present case asserted a noncon-
stitutional privilege, in a proceeding that is ‘essentially civil,’ and is neither
criminal nor quasicriminal.’’ (Citations omitted; footnotes omitted.) Id., 663–
64. The court simply applied then Practice Book (2001) § 34-1 (f) to the
facts of that case: ‘‘We also note that our conclusion that the trial court
was required to have given the respondents prior notice of its intent to draw
an adverse inference [from their failure to testify] is not based on due
process grounds . . . rather, our conclusion represents what we perceive
to be the most plausible reading of the procedures required in . . . the
Practice Book.’’ (Citation omitted; footnote omitted.) Id., 671–72. In sum,
In re Samantha C. does not support the proposition that the respondent’s
claim is of a constitutional magnitude.
16
The respondent argues in the alternative that this claim is reviewable
because it was allegedly raised at a posttrial status conference. There is no
record of this conference, and therefore it cannot be a basis for appellate
review. Burns v. Quinnipiac University, 120 Conn. App. 311, 318 n.6, 991
A.2d 666, cert. denied, 297 Conn. 906, 995 A.2d 634 (2010).
17
The respondent does not argue that the Connecticut constitution affords
a greater degree of due process protection. ‘‘Because the [respondent] does
not contend that [he] is entitled to any greater protection under the state
constitution than under the federal constitution, we treat those provisions
as embodying the same level of protection.’’ Kostrzewski v. Commissioner
of Motor Vehicles, 52 Conn. App. 326, 339 n.8, 727 A.2d 233, cert. denied,
249 Conn. 910, 733 A.2d 227 (1999).