In re Joheli V. ( 2018 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
IN RE JOHELI V.*
(AC 41349)
Alvord, Sheldon and Prescott, Js.
Syllabus
The respondent father appealed to this court from the judgment of the trial
court terminating his parental rights with respect to his minor daughter,
J. Held that there was no merit to the respondent’s claim that the trial
court erred when it determined that he had failed to achieve such degree
of personal rehabilitation as would encourage the belief that within a
reasonable time he could assume a responsible position in J’s life based
solely upon his current incarceration for allegedly sexually assaulting
J; although that court considered the respondent’s incarceration, which
it was entitled to do, it did not base its determination that the respondent
failed to rehabilitate solely on the ground that he was incarcerated,
which was one of many factors considered by the court, as the court
determined that the respondent’s efforts to rehabilitate were scant even
before his arrest in that he had unresolved mental health and substance
abuse issues, had a demonstrated inability to provide for J’s physical
and emotional needs, had neglected J’s medical and dental needs, and
had failed to comply with the specific steps previously ordered by the
court, and those findings were all amply supported in the record.
(One judge concurring separately)
Argued June 5—officially released August 6, 2018**
Procedural History
Petition by the Commissioner of Children and Fami-
lies to terminate the respondent’s parental rights with
respect to his minor child, brought to the Superior Court
in the judicial district of New Britain, Juvenile Matters,
and tried to the court, Hon. Henry S. Cohn, judge trial
referee; judgment terminating the respondent’s parental
rights, from which the respondent appealed to this
court; thereafter, the court issued an articulation of its
decision. Affirmed.
Stein M. Helmrich, for the appellant (respondent).
Stephen G. Vitelli, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, and Benjamin Zivyon, assistant attorney general,
for the appellee (petitioner).
Opinion
SHELDON, J. The respondent father, Luis V., appeals
from the judgment of the trial court terminating his
parental rights with respect to his minor child, Joheli
V.1 On appeal, the respondent claims that the court
erred when it determined, pursuant to General Statutes
§ 17a-112 (j) (3) (B), that he had failed to achieve such
degree of personal rehabilitation as would encourage
the belief that within a reasonable time, considering the
age and needs of Joheli, he could assume a responsible
position in her life, based solely upon the fact that he
is currently incarcerated and awaiting trial for allegedly
sexually assaulting Joheli.2 We affirm the judgment of
the trial court.
On August 6, 2015, the petitioner, the Commissioner
of Children and Families, filed a neglect petition in the
interest of Joheli, who has cerebral palsy and is con-
fined to a wheelchair, alleging that she was neglected
in that she was being permitted to live under conditions
injurious to her well-being. On September 21, 2015,
Joheli was adjudicated neglected and a six month
period of protective supervision with the respondent
was ordered. The court further ordered the respondent
to comply with several specific steps to safely retain
custody of Joheli. Those steps directed the respondent,
among other things, to: develop stronger parenting
skills in the areas of supervision, hygiene, educational
support and medical care; increase his understanding
of Joheli’s developmental issues; develop a support sys-
tem to assist with childcare responsibilities; maintain
a safe, nurturing and sober environment for Joheli; pro-
vide consistently for Joheli’s specialized medical needs;
attend recommended treatment consistently and com-
ply with all aspects of his treatment plans; and develop
strategies to maintain sobriety and establish sober
supports.
On November 9, 2015, Joheli reported to her school
tutor that she had been sexually assaulted by the
respondent. The tutor reported the incident to Joheli’s
teacher, who reported it to the police, who, in turn,
contacted the petitioner. Joheli was temporarily placed
in the custody of her maternal cousin, Rebecca Soto.
The court again ordered the respondent to comply with
several specific steps to regain custody of Joheli.
On January 28, 2016, Joheli was committed to the
care and custody of the petitioner until further order
of the court. The court again issued specific steps to
the respondent.
On April 6, 2016, the respondent was arrested on
charges of sexual assault in the first degree in violation
of General Statutes § 53a-70 (a) (2) and risk of injury
to a child in violation of General Statutes § 53-21 (a) (2).
He has been incarcerated, awaiting trial, since that date.
terminate the respondent’s parental rights. The peti-
tioner alleged that the Department of Children and Fam-
ilies (department) had made reasonable efforts to
reunify Joheli with the respondent, but that the respon-
dent was unable or unwilling to benefit from those
reunification efforts. The petitioner further alleged, in
accordance with § 17a-112 (j) (3) (B), that the respon-
dent had failed to achieve such degree of personal reha-
bilitation as would encourage the belief that within a
reasonable time, considering the age and needs of
Joheli, he could assume a responsible position in her
life. The petitioner set forth the following facts in sup-
port of that allegation.3 ‘‘At the time of Joheli’s removal
the presenting problems were [the respondent’s] unad-
dressed mental health and substance abuse issues, alle-
gations of sexual abuse by him and his inability to
demonstrate an ability to protect and meet Joheli’s
needs on a daily basis.
‘‘[The respondent] has a history of mental health and
substance abuse issues. These concerns appeared to
have intensified around the death of his children’s
mother . . . . [The respondent] has a historic inability
to provide for the physical and emotional needs of his
children evidenced by leaving them unsupervised on
several occasions while under the influence. [The
respondent’s] substance abuse is evidenced by reports
to the department of him being under the influence.
[The respondent] has had criminal charges, which
included breach of peace, stemming from his substance
abuse issue. Based on the department’s records, [the
respondent] has participated in a variety of treatment
programs including individual and group therapy with
little benefit or change achieved. A significant barrier
to his ability to make progress toward rehabilitation is
his incarceration based on the allegations of sexual
abuse. [The respondent] has failed to benefit, gain
knowledge, and make positive changes from these ser-
vices as evidenced by continuing to abuse substances
and failing to address his mental health. [The respon-
dent] continues to fail to meet the demands of adult-
hood, let alone the demands of parenthood.
Additionally, he has failed to appropriately and genu-
inely address his mental health [or] substance use
despite access to services to assist him in doing so.’’
The petitioner noted that Joheli, then eight years old,
has ‘‘medically complex issues and requires an adequate
caregiver in order for her to appropriately grow emo-
tionally, developmentally, medically and physically and
who must meet every aspect of her basic needs.’’
The petitioner concluded: ‘‘[The respondent] is
unable to meet his own basic needs at this time and
therefore unable to properly care for Joheli, who has
severe medical needs. [The respondent] has been
observed to minimize his substance use and the severity
of his mental health concerns. [The respondent] will
not be able to fully resume [the role of] a responsible
party in the life of his child within a reasonable time
period.’’
On July 25, 2017, the petitioner moved to amend the
termination petition to include an allegation, pursuant
to § 17a-112 (j) (3) (D), that there was no ongoing par-
ent-child relationship between the respondent and
Joheli, which motion was granted on August 22, 2017.
On November 9, 2017, after a trial, the court orally
granted the termination petition. The court found that
the department made reasonable efforts to reunify the
respondent with Joheli, but that the respondent ‘‘did
not really seize upon these opportunities and improve
his situation.’’ The court further found, by clear and
convincing evidence: ‘‘[The respondent] had unad-
dressed mental health and substance abuse issues.
There was an allegation, not proved yet, of sexual abuse
by him of the child, [he] has a history of mental health
and substance abuse issues and these concerns appear
to have intensified around the death of the child’s
mother, [he] has a . . . historic inability to provide for
the physical and emotional needs of his children.
‘‘And . . . [the respondent] turned down in-home
care services. He also neglected various health issues
of the child. She’s got cerebral palsy. She’s clearly got
to have medical attention periodically, dental attention,
and that was not shown to have happened.
‘‘And the idea is that even if he somewhat engaged
in these, he did go to a therapist and he had some
sessions with a therapist and was trying to work on
these problems, the statute requires that . . . there be
a second portion of it, that even if this is going on, that
there be a reasonable time under which this reunifica-
tion and resolution, rehabilitation could—the child
would and the father would resolve his problems and
take into account the needs of the child. We don’t see
that happening here.
‘‘At the time, he was—at the time of the filing of
the termination petition, he was just not meeting the
standards. The child was reporting trauma due to drink-
ing. The poor kid was trying to pick up her father [from
the floor] and couldn’t do it with her . . . cerebral
palsy . . . .’’ The court further found that the respon-
dent was not in compliance with the specific steps that
had been issued, and there was no evidence that ‘‘the
[respondent has] made realistic and sustained efforts
to conform . . . his conduct to even a minimally
accepted parental [standard]. Giving him additional
time will not likely bring his performance . . . within
acceptable standards.’’ On the basis of the foregoing,
the court concluded, in accordance with § 17a-112 (j)
(3) (B), that the respondent had failed to achieve such
degree of personal rehabilitation as would encourage
the belief that within a reasonable time, considering the
age and needs of Joheli, he could assume a responsible
position in her life.4 The court further concluded that
termination was in Joheli’s best interest and, accord-
ingly, terminated the respondent’s parental rights.
On March 19, 2018, the trial court issued an articula-
tion of its decision, reiterating that it ‘‘made no adjudica-
tive finding on ground D, [that there was no ongoing
relationship between the respondent and Joheli]. . . .
The finding on ground B by clear and convincing evi-
dence that father had unaddressed mental health and
substance abuse issues, that he ignored his daughter’s
health issues, that he had declined in-house services
and had an alcoholic incident involving the daughter.
It further found that the father could not address these
issues in a reasonable time period given the age and
needs of the child. He is presently incarcerated. The
child was experiencing trauma due to her relationship
with her father.’’ The court declined to ‘‘further articu-
late on ground D.’’5
The respondent claims on appeal that the trial court
erred in terminating his parental rights on the ground
that he had failed to achieve such degree of personal
rehabilitation as would encourage the belief that within
a reasonable time, considering the age and needs of
Joheli, he could assume a responsible position in her
life, pursuant to § 17a-112 (j) (3) (B). Specifically, he
claims that the court erred in basing that determination
solely upon his current incarceration for allegedly sexu-
ally assaulting Joheli. We are not persuaded.
‘‘Our Supreme Court has clarified that [a] conclusion
of failure to rehabilitate is drawn from both the trial
court’s factual findings and from its weighing of the
facts in assessing whether those findings satisfy the
failure to rehabilitate ground set forth in § 17a-112 (j)
(3) (B). Accordingly . . . the appropriate standard of
review is one of evidentiary sufficiency, that is, whether
the trial court could have reasonably concluded, upon
the facts established and the reasonable inferences
drawn therefrom, that the cumulative effect of the evi-
dence was sufficient to justify its [ultimate conclusion].
. . . When applying this standard, we construe the evi-
dence in a manner most favorable to sustaining the
judgment of the trial court. . . . We will not disturb
the court’s subordinate factual findings unless they are
clearly erroneous. . . .
‘‘Personal rehabilitation as used in the statute refers
to the restoration of a parent to his or her former con-
structive and useful role as a parent. . . . [Section 17a-
112] requires the trial court to analyze the [parent’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. . . .
[The statute] requires the court to find, by clear and
convincing evidence, that the level of rehabilitation
[that the parent has] achieved, if any, falls short of that
which would reasonably encourage a belief that at some
future date [he] can assume a responsible position in
[his] child’s life. . . . [I]n assessing rehabilitation, the
critical issue is not whether the parent has improved
[his] ability to manage [his] own life, but rather whether
[he] has gained the ability to care for the particular
needs of the child at issue. . . . As part of the analysis,
the trial court must obtain a historical perspective of
the respondent’s child caring and parenting abilities,
which includes prior adjudications of neglect, sub-
stance abuse and criminal activity. . . .
‘‘The statute does not require [a parent] to prove
precisely when [he] will be able to assume a responsible
position in [his] child’s life. Nor does it require [him]
to prove that [he] will be able to assume full responsibil-
ity for [his] child, unaided by available support systems.
. . . In determining whether a parent has achieved suf-
ficient 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. . . . 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.’’ (Citations
omitted; internal quotation marks omitted.) In re Dam-
ian G., 178 Conn. App. 220, 237–39, 174 A.3d 232 (2017),
cert. denied, 328 Conn. 902, 177 A.3d 563 (2018).
In challenging the court’s finding that he failed to
rehabilitate, the respondent argues that the court failed
‘‘to consider [his] incarceration status and the potential
[that] he could be found innocent . . . [and that his]
rights were terminated based on an allegation for which
he maintains his innocence and has yet to face trial
. . . .’’ (Citation omitted.) In so arguing, the respondent
misconstrues the trial court’s decision. Although the
court considered the respondent’s incarceration, which
it is entitled to do, as acknowledged by the respondent
himself; see, e.g., In re Katia M., 124 Conn. App. 650,
661, 6 A.3d 86 (parent’s unavailability, due to incarcera-
tion, properly considered ‘‘an obstacle to reunifica-
tion’’), cert. denied, 299 Conn. 920, 10 A.3d 1051 (2010);
it did not base its determination that the respondent
failed to rehabilitate solely on the ground that he was
incarcerated. The court determined that the respon-
dent’s efforts to rehabilitate were scant even before
his arrest. The court noted that the respondent had
unresolved mental health and substance abuse issues,
and a demonstrated inability to provide for the physical
and emotional needs of Joheli. The court found that the
respondent had neglected Joheli’s medical and dental
needs and failed to comply with the specific steps pre-
viously ordered by the court. The respondent does not
dispute these findings, which, we note, are amply sup-
ported in the record. It is clear from the record that
the respondent’s incarceration was only one factor of
many upon which the court based its determination
that he had failed to achieve such degree of personal
rehabilitation as would encourage the belief that within
a reasonable time, considering the age and needs of
Joheli, he could assume a responsible position in her
life. The respondent’s claim is therefore without merit.6
The judgment is affirmed.
In this opinion ALVORD, J. concurred.
* In accordance with the spirit and intent of General Statutes § 46b-142
(b) and Practice Book § 79a-12, the names of the parties involved in this
appeal are not disclosed. The records and papers of this case shall be open
for inspection only to persons having a proper interest therein and upon
order of the Appellate Court.
** August 6, 2018, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
Joheli’s mother passed away unexpectedly in January, 2015, due to a
medical condition.
2
Section 17a-112 (j) provides in relevant part: ‘‘The Superior Court, upon
notice and hearing as provided in sections 45a-716 and 45a-717, may grant
a petition [terminating parental rights] if it finds by clear and convincing
evidence that . . . (3) . . . (B) the child . . . has been found by the Supe-
rior Court or the Probate Court to have been neglected, abused 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
pursuant to section 46b-129 and has failed to achieve such degree of personal
rehabilitation as would encourage the belief that within a reasonable time,
considering the age and needs of the child, such parent could assume a
responsible position in the life of the child . . . .’’
3
The petitioner also alleged, pursuant to § 17a-112 (j) (3) (C), that Joheli
had been denied, by reason of an act or acts of parental commission or
omission including, but not limited to, sexual molestation or exploitation,
severe physical abuse or a pattern of abuse, the care, guidance or control
necessary for her physical, educational, moral or emotional well-being. The
petitioner withdrew that allegation prior to trial.
4
The court indicated that it would was ‘‘going to go with ground B because
I think it’s the simplest and clearest here.’’
5
Because the trial court addressed only the petitioner’s claim that the
respondent failed to rehabilitate, and declined to adjudicate the petitioner’s
claim that the respondent’s parental rights should be terminated because
he had no ongoing relationship with Joheli, this court issued an order, sua
sponte, instructing the parties to be prepared to address at oral argument
the issue of whether there is an appealable final judgment in this case
pursuant to Meribear Productions., Inc. v. Frank, 328 Conn. 709, 183 A.3d
1164 (2018), in which our Supreme Court held: ‘‘[W]hen the trial court
disposes of one count in the plaintiff’s favor, such a determination implicitly
disposes of legally inconsistent, but not legally consistent, alternative theo-
ries. When a legally consistent theory of recovery has been litigated and
has not been ruled on, there is no final judgment.’’ Id., 723–24. Because the
two statutory grounds alleged by the petitioner in this case, grounds B and
D, are not different theories of recovery, as contemplated in Meribear, but,
rather, are simply two alternative bases upon which the court could have
based its adjudication of a single cause of action, termination of the respon-
dent’s parental rights, we conclude that Meribear does not apply to this
case, and thus that the respondent has properly appealed from a final judg-
ment over which we have subject matter jurisdiction.
6
The respondent also claims that the court’s determination that the termi-
nation of his parental rights was in Joheli’s best interest should be reversed
if we determine that the court erred in finding that he failed to rehabilitate.
Because we affirm the court’s determination that the respondent failed to
rehabilitate, and his claim to the contrary was the sole basis for his challenge
to the best interest finding, his claim that the court erred in concluding that
termination was in Joheli’s best interest also fails.