In re Elijah C. ( 2016 )

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IN RE ELIJAH C.*
(AC 38519)
DiPentima, C. J., and Beach and Flynn, Js.
Argued February 29—officially released March 29, 2016**
(Appeal from Superior Court, judicial district of
Windham, Child Protection Session at Willimantic, Hon.
Francis J. Foley III, judge trial referee.)
Matthew C. Eagan, assigned counsel, with whom
were James P. Sexton, assigned counsel, and, on the
brief, Michael S. Taylor, assigned counsel, for the appel-
lant (respondent mother).
Michael Besso, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, Gregory T. D’Auria, solicitor general, and Benja-
min Zivyon, assistant attorney general, for the
appellee (petitioner).
Opinion
DiPENTIMA, C. J. The respondent mother, Marquita
C.,1 appeals from the judgment of the trial court termi-
nating her parental rights as to her son, Elijah C. On
appeal, she raises and analyzes three issues to argue
that the court erred in determining that the Department
of Children and Families (department) made reasonable
efforts to reunify her with Elijah. Specifically, the
respondent claims that (1) the department failed to
provide federally mandated services to reasonably
accommodate her intellectual disabilities, (2) the
department failed to follow a court order to continue
certain reunification services, and (3) the department
must provide services that allow intellectually disabled
parents a reasonable opportunity to retain custody of
their children as part of reasonable efforts to reunify.
We dismiss the appeal for lack of jurisdiction as it
is moot.
The record reveals the following procedural history.
The court granted the petitioner, the Commissioner of
Children and Families, an ex parte order of temporary
custody of Elijah shortly after he was born. The peti-
tioner filed a neglect petition on February 21, 2014, on
the basis of the doctrine of predictive neglect as a result
of the respondent’s diminished cognitive abilities.2 The
order granting temporary custody of Elijah was sus-
tained four days later.
The court, Dyer, J., held a neglect trial on September
15, 2014. On October 2, 2014, the court adjudicated
Elijah as neglected and ordered his care, custody, and
guardianship committed to the petitioner. Additionally,
the court ordered the department (1) to contact two
state agencies to inquire about additional services for
the respondent, (2) to ascertain from those agencies
whether a group home existed where the respondent
could potentially be reunified with Elijah and receive
various forms of instruction, (3) to request the behav-
ioral health center that was providing the respondent
with psychotropic medications to conduct a medication
management review, and (4) to file a written report
with the court addressing various issues.
On November 4, 2014, the petitioner filed a motion
for review of the permanency plan seeking to terminate
the parental rights of the respondent. Judge Dyer held
a trial on January 22, 2015, and six days later, the court
issued its memorandum of decision. After considering
the evidence presented, the court concluded that it was
in the best interest of Elijah that the respondent be
‘‘afford[ed] . . . a limited period of additional time to
pursue reunification efforts,’’ namely, to continue with
the services provided by the department. (Footnote
omitted.) The time period, the court believed, ‘‘should
not exceed six or seven months.’’ Ultimately, the court
rejected the department’s permanency plan of termina-
tion of parental rights.
On February 24, 2015, the petitioner filed a petition
pursuant to General Statutes § 17a-112 to terminate the
parental rights of the respondent and Paul Y. See foot-
note 1 of this opinion. On September 8 and 10, 2015,
the court, Hon. Francis J. Foley III, judge trial referee,
held a hearing on the termination of parental rights
petition.3 On September 18, 2015, the court issued a
comprehensive memorandum of decision. The court
found by clear and convincing evidence that ‘‘[the
department had] made reasonable efforts to reunify the
child with [the respondent] . . . [and the respondent]
is unable to benefit from reunification services.’’ Conse-
quently, the court terminated the parental rights of the
respondent. This appeal followed.
The court’s memorandum of decision from the termi-
nation hearing sets forth the following facts relevant
to this appeal. Shortly after Elijah was born, the hospital
personnel were concerned because the respondent
‘‘appeared to have cognitive limitations and serious
mental health problems (schizophrenia) and that [the
respondent] was reported to have poor judgment and
no insight into parenting.’’ Thus, the hospital contacted
the department, who sent a social worker to observe
the respondent and Elijah. The social worker concluded
that the respondent could not care for Elijah because
of the severity of her limitations.
The respondent’s lengthy and exceptionally sad
involvement in the child welfare system provides the
context to the present appeal. The respondent was born
prematurely, addicted to cocaine and alcohol, and suf-
fered serious medical conditions. In April, 1989, the
respondent was placed in foster care with Gwendolyn
C. and her then husband. In 1993, Gwendolyn and her
then husband adopted the respondent and another girl
unrelated to the respondent. In 1994, the respondent’s
adoptive parents divorced. Between 1997 and 1999,
Gwendolyn adopted three more children.
The respondent’s childhood with Gwendolyn was dif-
ficult. Under her care, the respondent and the other
children were ‘‘cruel[ly] discipline[d] . . . [by her]
making them run up and down stairs, standing them
on one leg with their arms outstretched holding a book
in each arm, [and] beating the children with a stick and
with a belt.’’ In July, 2001, just prior to the respondent’s
thirteenth birthday, Gwendolyn abandoned three of her
adoptive children, including the respondent, at the
department’s Meriden office. Gwendolyn explained that
she could no longer care for the children. All three
children were underweight, which lent credence to
claims that Gwendolyn routinely withheld food from
the children.
After being abandoned by Gwendolyn, the respon-
dent remained in the custody of the petitioner as a
committed child for approximately six years. The
respondent qualified for postmajority services through
the Department of Developmental Services and the
Department of Mental Health and Addiction Services.
The department developed a postmajority plan in which
both agencies were to provide the respondent with ‘‘life
skills, vocational training, and supportive housing.’’ The
postmajority plan, however, never came to fruition
because, prior to her nineteenth birthday, the respon-
dent returned to Gwendolyn’s care. The respondent
resided with Gwendolyn for the next several years
before cohabitating with Paul Y. After the respondent
and Paul Y.’s relationship ended, she returned to Gwen-
dolyn’s home. Approximately four months later, Elijah
was born.
The court’s memorandum of decision also detailed
the department’s efforts to reunite Elijah with the
respondent. It noted that the department offered the
respondent case management services, three in-home
visits per week with a parenting skills component, the
opportunity to attend Elijah’s medical visits by provid-
ing transportation, and services from two agencies to
provide supervised visitation and training in basic
childcare skills. Concerned that the respondent was
‘‘being overwhelmed with too many services,’’ the
department sought and was granted permission for the
respondent to undergo psychological evaluations.
The respondent underwent two psychological evalua-
tions that informed the court’s decision. The first evalu-
ation, conducted by Madeleine Leveille, a licensed
psychologist, was completed in August, 2014, prior to
the neglect trial. In addition to providing the court with
the respondent’s background, Leveille’s evaluation
made key observations and opinions. For example,
when discussing her mental illness, the respondent told
Leveille that she regularly saw a ‘‘shadow,’’ which Lev-
eille characterized as a visual hallucination. Leveille
concluded that the respondent had a ‘‘limited concep-
tual understanding, [was] highly dependent socially on
others, and [had] odd and occasionally paranoid and
cynical thought processes.’’ Moreover, the respondent’s
‘‘thinking processes show[ed] clear evidence of her
[i]ntellectual [d]isability, [s]chizophrenia and a mood
disorder.’’ Leveille was unequivocal that ‘‘[h]aving an
[i]ntellectual [d]isability does not mean that one cannot
parent a child. In [the respondent’s] case, however,
her intellectual disability, coupled with her psychiatric
conditions, particularly her personality disorder, render
her incapable of parenting a child independently.’’
Approximately two months before the termination
trial, in July, 2015, the respondent underwent a second
evaluation. This evaluation was funded by the depart-
ment in an effort to assess the respondent on an ‘‘indi-
vidualized basis.’’ The ‘‘Cognitive/Adaptive Functioning
Evaluation’’ was conducted by Stephanie Stein Leite, a
licensed psychologist. Leite concluded that the respon-
dent had an intelligent quotient that placed her in the
‘‘[e]xtremely [l]ow range,’’ i.e., at the ‘‘bottom [one]
percentile of the [population] . . . .’’ Leite’s evaluation
also concluded that the respondent’s personal and
social skills, adaptive behavior, the ability to perform
daily living skills by an individual were in the one per-
cent range, i.e., ‘‘[ninety-nine percent] of the population
[have] better adaptive functioning skills than does [the
respondent].’’ Leite’s assessment indicated that the
respondent’s ‘‘eating, dressing, and hygiene skills [were]
commensurate with a six year old . . . [that] [s]he
complete[d] household chores at the level of an eleven
year old, and use[d] time, money, and communication
tools at the level of a [thirteen] year old.’’ In short,
Leite’s evaluation demonstrated that the respondent,
pursuant to General Statutes § 1-1g,4 was intellectually
disabled. On the basis of these results, Leite opined
that the respondent was ‘‘unlikely to be able to indepen-
dently care for herself, which means she [would] not
[be] able to care for her baby. Because many of [the
respondent’s poor adaptive skills were] rooted in her
lower intellectual functioning, though she is educatable,
the deficits are not, overall, likely to be responsive
to remediation.’’ Leite concluded that the respondent
could only care for Elijah if the respondent was under
someone’s care.
On appeal, the respondent, in her main brief, argues
that the ‘‘court erred in determining that [the depart-
ment] made reasonable efforts to reunify where the
department curtailed services and filed a petition to
terminate [the respondent’s] parental rights less than
one month after being ordered by the court to allow
[the respondent] more time to benefit from services.’’
The respondent’s second argument in her main brief is
that the ‘‘court erred in determining that [the depart-
ment] made reasonable efforts to reunify where the
department failed to provide services that would rea-
sonably accommodate [the respondent’s] intellectual
disabilities.’’
In response, the petitioner argues that the respon-
dent’s claim is moot. Specifically, the petitioner asserts
that, because the respondent challenged only the
court’s finding that the department made a reasonable
effort to reunify and did not explicitly challenge the
finding that the respondent was unable to benefit from
these services, her appeal is moot pursuant to In re
Jorden R., 293 Conn. 539, 979 A.2d 469 (2009). The
respondent, in her reply brief, disagrees. She distills
her argument as follows: ‘‘[The department’s] decision
to ignore the . . . court’s January 28, 2015 [perma-
nency plan] ruling that [the respondent] be given more
time to continue to benefit from services already in
place, to instead diminish the services it was providing,
and to proceed with termination were unreasonable
and made any finding that she was unable to benefit
from services clearly erroneous. At the [termination of
parental rights] hearing, the . . . court had no way to
know what progress the respondent would have made
had Judge Dyer’s order been followed.’’ In support of
her argument, the respondent points to seven sentences
from her main brief. Consequently, the respondent
argues, her claim is not moot. We agree with the peti-
tioner that the appeal is moot for failing to adequately
challenge the court’s finding that the respondent was
unable to benefit from the reunification services pro-
vided by the department.
‘‘Mootness is a question of justiciability that must be
determined as a threshold matter because it implicates
[a] court’s subject matter jurisdiction . . . . We begin
with the four part test for justiciability established in
State v. Nardini, 187 Conn. 109, 445 A.2d 304 (1982).
. . . Because courts are established to resolve actual
controversies, before a claimed controversy is entitled
to a resolution on the merits it must be justiciable.
Justiciability requires (1) that there be an actual contro-
versy between or among the parties to the dispute . . .
(2) that the interests of the parties be adverse . . .
(3) that the matter in controversy be capable of being
adjudicated by judicial power . . . and (4) that the
determination of the controversy will result in practi-
cal relief to the complainant. . . . [I]t is not the prov-
ince of appellate courts to decide moot questions,
disconnected from the granting of actual relief or from
the determination of which no practical relief can fol-
low. . . . In determining mootness, the dispositive
question is whether a successful appeal would benefit
the plaintiff or defendant in any way.’’ (Citations omit-
ted; emphasis in original; internal quotation marks omit-
ted.) In re Jorden R., supra, 293 Conn. 555–56.
Because In re Jorden R. controls the outcome of this
appeal, we find value in briefly reviewing the analysis
of that case as set forth by our Supreme Court. The
court in In re Jorden R. clarified that ‘‘[a]s part of a
termination of parental rights proceeding, § 17a-112 (j)
(1)5 requires the department to prove by clear and con-
vincing evidence that it has made reasonable efforts to
locate the parent and to reunify the child with the par-
ent, unless the court finds in this proceeding that the
parent is unable or unwilling to benefit from reunifi-
cation efforts . . . .
‘‘Because the two clauses are separated by the word
unless, this statute plainly is written in the conjunctive.
Accordingly, the department must prove either that it
has made reasonable efforts to reunify or, alternatively,
that the parent is unwilling or unable to benefit from
reunification efforts. Section 17a-112 (j) clearly pro-
vides that the department is not required to prove both
circumstances. Rather, either showing is sufficient to
satisfy this statutory element.’’ (Emphasis in original;
footnote added; internal quotation marks omitted.) Id.,
552–53. As a result, our Supreme Court held that the
statutory language § 17a-112 (j) (1) permits the ‘‘trial
court to excuse [reasonable] efforts when a parent is
unwilling or unable to benefit from them.’’ Id., 554.
Having concluded that either finding, i.e., reasonable
efforts to reunify a parent and child were made or that
the parent is unwilling or unable to benefit from the
reunification efforts, provided an independent basis for
satisfying § 17a-112 (j) (1), our Supreme Court held that
failing to challenge both findings rendered the appeal
moot. Id., 557. In that case, the trial court found that
the department had made reasonable efforts to reunify
the respondent and found that the respondent was
unwilling or unable to benefit from the reunification
efforts. Id., 549. On appeal, the respondent had not
challenged the court’s finding that the department had
made reasonable reunification efforts, ‘‘a finding that
provide[d] an independent alternative basis for uphold-
ing the trial court’s determination that the requirements
of § 17a-112 (j) (1) had been satisfied.’’ Id., 555. Our
Supreme Court concluded that the respondent could
not be afforded any practical relief because, by not
challenging both findings, the ‘‘trial court’s ultimate
determination that the requirements of § 17a-112 (j) (1)
were satisfied remain[ed] unchallenged and intact.’’ Id.,
557. Therefore, as contemplated by In re Jorden R.,
when a court terminates parental rights on the basis of
its findings that the department made reasonable efforts
to reunify the parent with the child and that the parent
was unwilling or unable to benefit from the reunifica-
tion services, on appeal, the parent must ‘‘formally raise
or fully brief a challenge’’; id., 555 n.14; to both findings
because either is an independent basis to terminate
parental rights.
In the present case, the court found by clear and
convincing evidence that the department (1) ‘‘made rea-
sonable efforts to reunify the child with [the respon-
dent],’’ and (2) ‘‘that [the respondent] is unable to
benefit from reunification . . . .’’ In reviewing the
respondent’s statement of issues, we note that the
court’s first finding was clearly challenged by the
respondent on appeal; the second finding was not. The
respondent argues in her reply brief that seven senten-
ces from her main brief challenge the court’s second
finding.6 Although the respondent’s main brief does use
language suggesting a challenge to the court’s second
finding, the argument was far from complete, lacking
legal authority and analysis. As a result, the respondent
has failed to adequately brief any challenge of the
court’s second finding that she was unable to benefit
from the reunification efforts. See In re Kachainy C.,
67 Conn. App. 401, 413, 787 A.2d 592 (2001).
Review of the respondent’s challenge to the court’s
finding that the department made reasonable efforts to
reunify Elijah with the respondent would be improper
because it cannot afford her any practical relief and,
therefore, is moot. See In re Jorden R., supra, 293 Conn.
556 (‘‘[i]t is not the province of appellate courts to
decide moot questions, disconnected from the granting
of actual relief or from the determination of which no
practical relief can follow’’ [emphasis omitted; internal
quotation marks omitted]); In re Alison M., 127 Conn.
App. 197, 206, 15 A.3d 194 (2011) (same). We conclude,
on the basis of the controlling precedent from our
Supreme Court, that the respondent’s appeal from the
court’s judgment terminating her parental rights is moot
because she failed to challenge the court’s finding that
she was unable to benefit from the reunification efforts.
Accordingly, we decline to review her claim.
The appeal is dismissed.
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 full 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.
** March 29, 2016, 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 Elijah’s putative father,
Paul Y., during the same proceedings. Paul Y., however, did not challenge
the court’s judgment. Accordingly, in this opinion, we refer to the mother
alone as the respondent.
2
‘‘A finding of neglect is not necessarily predicated on actual harm, but
can exist when there is a potential risk of neglect.’’ In re Brianna C., 98
Conn. App. 797, 802, 912 A.2d 505 (2006).
3
Prior to the commencement of the hearing on the termination petition,
the respondent filed a motion to transfer guardianship to Gwendolyn C.,
the respondent’s adoptive mother. The court denied this motion and that
ruling was not challenged on appeal.
4
General Statutes § 1-1g provides: ‘‘(a) Except as otherwise provided by
statute, ‘intellectual disability’ means a significant limitation in intellectual
functioning existing concurrently with deficits in adaptive behavior that
originated during the developmental period before eighteen years of age.
‘‘(b) As used in subsection (a) of this section, ‘significant limitation in
intellectual functioning’ means an intelligence quotient more than two stan-
dard deviations below the mean as measured by tests of general intellectual
functioning that are individualized, standardized and clinically and culturally
appropriate to the individual; and ‘adaptive behavior’ means the effectiveness
or degree with which an individual meets the standards of personal indepen-
dence and social responsibility expected for the individual’s age and cultural
group as measured by tests that are individualized, standardized and clini-
cally and culturally appropriate to the individual.’’
5
General Statutes § 17a-112 (j) provides in relevant part: ‘‘The Superior
Court, upon notice and hearing . . . may grant a petition filed pursuant to
this section if it finds by clear and convincing evidence that (1) the Depart-
ment of Children and Families has made reasonable efforts to locate the
parent and to reunify the child with the parent . . . 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) . . . (B) the child (i) has been
found by the Superior Court or the Probate Court to have been neglected,
abused or uncared for in a prior proceeding . . . (E) the parent of a child
under the age of seven years who is neglected, abused or uncared for,
has failed, is unable or is unwilling to achieve such degree of personal
rehabilitation as would encourage the belief that within a reasonable period
of time, considering the age and needs of the child, such parent could
assume a responsible position in the life of the child and such parent’s
parental rights of another child were previously terminated pursuant to a
petition filed by the Commissioner of Children and Families . . . .’’
General Statutes § 17a-111b (a) provides in relevant part: ‘‘The Commis-
sioner of Children and Families shall make reasonable efforts to reunify a
parent with a child unless the court (1) determines that such efforts are
not required pursuant to . . . subsection (j) of section 17a-112 . . . .’’
6
We also note that these seven sentences were contained in a subpara-
graph entitled ‘‘The Trial Court’s January 28, 2015 Ruling On the Petitioner’s
Permanency Plan Defined Reasonable Efforts,’’ in the respondent’s main
brief.