In re Briana G. , 183 Conn. App. 724 ( 2018 )

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IN RE BRIANA G. ET AL.*
(AC 41106)
Sheldon, Prescott and Bear, Js.
Syllabus
The respondent father appealed to this court from the judgments of the
trial court terminating his parental rights with respect to his minor
children. Held:
1. The respondent father could not prevail on his claim that the petitioner,
the Commissioner of Children and Families, failed to prove by clear
and convincing evidence that he had failed to achieve a sufficient degree
of personal rehabilitation as required by statute (§ 17a-112 [j] [3] [B]
[i]), which was based on his claim that the Department of Children and
Families did not provide him with sufficient time and resources to
demonstrate that, within a reasonable time, considering the age and
needs of each child, he could assume a responsible position in their
lives; although the father asserted that because there was some evidence
of rehabilitation despite the untimely death of the children’s mother
and his six month period of incarceration, he could have achieved a
sufficient level of rehabilitation if he had been given more time and
resources, the trial court’s determination of his failure to rehabilitate
was not premature, that court having found that the department made
reasonable efforts at reunification but that the father was unable to
benefit from those efforts, as he did not engage in any substance abuse
or mental health services offered to him from the time of the case
opening until just prior to his incarceration, he failed to provide the
department with the requested documentation of his income in order
for it to determine if it could pay for his therapy, he refused to submit
to random drug testing on several dates, he continuously denied that
he had a substance abuse problem or needed therapy, and he had made
very little progress with any mental health treatment through the date
of trial.
2. The respondent father failed to establish his claim that the trial court
abused its discretion in admitting into evidence the transcripts of certain
text messages extracted from the cell phone of the children’s mother
following her death; the father’s claim that the commissioner failed to
authenticate properly the messages by demonstrating a proper chain of
custody for them concerned the weight of the evidence rather than its
admissibility, his assertion that the cell phone was possibly tampered
with or altered before being given to the police was not supported by
any evidence, and testimony from the children’s maternal grandmother
and a police detective supported the court’s determination that a chain
of custody was sufficiently established.
Argued May 30—officially released July 25, 2018**
Procedural History
Petitions by the Commissioner of Children and Fami-
lies to terminate the respondent father’s parental rights
in his minor children, brought to the Superior Court in
the judicial district of Fairfield, Juvenile Matters, and
tried to the court, Ginocchio, J.; judgments terminating
the respondent’s parental rights, from which the respon-
dent appealed to this court. Affirmed.
David V. DeRosa, for the appellant (respondent).
Carolyn A. Signorelli, 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
BEAR, J. The respondent father, Justin G.,1 appeals
from the judgments of the trial court rendered in favor
of the petitioner, the Commissioner of Children and
Families (commissioner), terminating his parental
rights with respect to his three minor children, B, L and
H.2 On appeal, the respondent claims that the court (1)
prematurely determined that the respondent failed to
rehabilitate because the Department of Children and
Families (department) did not provide him with suffi-
cient time and resources to do so, and (2) improperly
admitted into evidence transcripts of text messages
obtained by the police, although a proper chain of cus-
tody was not proved prior to their admission. We affirm
the judgments of the trial court.
The following facts and procedural history are rele-
vant to this appeal. On October 2, 2015, the department
issued a ninety-six hour administrative hold of newborn
baby H after the mother tested positive for use of opi-
ates and marijuana at the time of her birth. On October
6, 2015, the commissioner filed in the Superior Court
a neglect petition relating to H, and neglect petitions
relating to B and L, who are the two other minor chil-
dren of the mother and the respondent. In support of
her neglect petitions, the commissioner alleged, inter
alia, that the parents were using heroin heavily and
abusing prescription pills. Additionally, the commis-
sioner filed an ex parte motion for temporary custody
of H, which the court granted on that day.
On February 26, 2016, the commissioner filed ex parte
motions for temporary custody of B and L, which the
court granted on that day. The department subsequently
placed the minor children with their maternal grandpar-
ents. The respondent was incarcerated for ninety days,
from February 26 through May 13, 2016, after he was
found to have violated the terms of his probation and
after he was convicted of the offense of evading respon-
sibility involving property damage in violation of Gen-
eral Statutes § 14-224 (b) (3). While he was incarcerated,
on March 13, 2016, the mother unexpectedly passed
away due to complications from cardiopulmonary
arrest and acute heroin and cocaine intoxication. On
March 17, 2016, the court adjudicated the minor chil-
dren neglected pursuant to General Statutes § 46b-120
(6) (C).3
On March 7, 2017, the commissioner filed petitions
to terminate the parental rights of the respondent with
respect to each of his three minor children. The sole
ground alleged in each of the petitions was General
Statutes § 17a-112 (j) (3) (B) (i), failure to achieve a
sufficient degree of personal rehabilitation as would
encourage the belief that he could assume a responsible
position in their lives within a reasonable time.4 A trial
on each of the petitions occurred on September 12 and
13, 2017. By a memorandum of decision dated Novem-
ber 8, 2017, the court found by clear and convincing
evidence that the respondent had failed to rehabilitate
pursuant to § 17a-112 (j) (3) (B) (i) and that termination
of his parental rights was in the best interest of each
of the children, and it, therefore, terminated his parental
rights with respect to each of them. This appeal
followed.
Our standard of review is well established. ‘‘A hearing
on a termination of parental rights petition consists of
two phases, adjudication and disposition. . . . In the
adjudicatory phase, the court must determine whether
the [commissioner] has proven, by clear and convincing
evidence, a proper ground for termination of parental
rights. . . . In the dispositional phase, once a ground
for termination has been proven, the court must deter-
mine whether termination is in the best interest of the
child. . . .
‘‘Failure of a parent to achieve sufficient personal
rehabilitation is one of six statutory grounds on which
a court may terminate parental rights pursuant to § 17a-
112. . . . That ground exists when a parent of a child
whom the court has found to be neglected fails to
achieve such a degree of rehabilitation as would encour-
age the belief that within a reasonable time, considering
the age and needs of the child, the parent could assume
a responsible position in the life of that child. . . .
‘‘Personal rehabilitation as used in [§ 17a-112 (j) (3)
(B) (i)] refers to the restoration of a parent to his or
her former constructive and useful role as a parent.
. . . 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.
. . . Rather, [§ 17a-112] requires the trial court to ana-
lyze 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 rehabili-
tation [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 posi-
tion in [his] child’s life. . . . [I]n assessing rehabilita-
tion, 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. . . .
‘‘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 find-
ings 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 reason-
able inferences drawn therefrom, that the cumulative
effect of the evidence was sufficient to justify its [ulti-
mate conclusion]. . . . When applying this standard,
we construe the evidence in a manner most favorable
to sustaining the judgment of the trial court. . . . We
will not disturb the court’s subordinate factual findings
unless they are clearly erroneous.’’ (Citation omitted;
internal quotation marks omitted.) In re Lilyana P.,
169 Conn. App. 708, 717–18, 152 A.3d 99 (2016), cert.
denied, 324 Conn. 916, 153 A.3d 1290 (2017).
Reasonable time for rehabilitation within the mean-
ing of the statute is a question of fact. In re Davon M.,
16 Conn. App. 693, 695–96, 548 A.2d 1350 (1988). ‘‘[I]n
determining whether a parent has achieved sufficient
personal rehabilitation, a court may consider whether
the parent has corrected the factors that led to the
initial commitment, regardless of whether those factors
were included in specific expectations ordered by the
court or imposed by the department.’’ (Internal quota-
tion marks omitted.) In re Shane M., 318 Conn. 569,
586, 122 A.3d 1247 (2015). Moreover, ‘‘we will not scruti-
nize the record to look for reasons supporting a differ-
ent conclusion than that reached by the trial court.’’
Id., 593.
I
On appeal, the respondent claims that the court
improperly terminated his parental rights with respect
to each of his three children because the commissioner
failed to prove, by clear and convincing evidence, that
he had failed to achieve a sufficient degree of personal
rehabilitation pursuant to § 17a-112 (j) (3) (B) (i),
because the department did not provide him with suffi-
cient time or resources to rehabilitate due to his ninety
day period of incarceration and the untimely death of
the mother. In other words, the respondent asserts that
because there was some evidence of rehabilitation, if
he were given more time and resources, he could have
achieved a sufficient level of rehabilitation; therefore,
the court’s determination of his failure to rehabilitate
was premature. We are not persuaded.
In its memorandum of decision, the court noted the
respondent’s and the mother’s mutual focus on illegal
drugs. In light of that focus, the department recom-
mended that each of them engage in substance abuse
and mental health services. The court found that the
respondent ‘‘did not engage in any substance abuse or
mental health services offered to him from the time of
the case opening to just prior to his incarceration.’’ The
respondent had not attended individual therapy after
December 13, 2016, a period of approximately three
months prior to the filing of the petitions to terminate
parental rights. Although he claimed that he could not
afford therapy, he failed to provide requested documen-
tation of his income in order for the department to
determine if it could pay for his therapy.
Although the respondent tested negative for drug use
on two urine screens and hair tests on August 11, 2016,
and September 27, 2016, he refused to submit to random
urine screens on January 23, 2017, and February 21,
2017. According to the commissioner’s August 10, 2017
case status report, the respondent was ‘‘asked to attend
substance abuse screenings seven times [between Janu-
ary 23 through June 29, 2017], all of which he declined
to attend. He was also asked to not cut his hair on
[April 6, 2017], in anticipation of a hair test, and shortly
afterwards he cut his hair very short.’’ The court also
noted that he had shaved his head after January 23,
2017, and that there was evidence found at the mother’s
home, where the respondent lived as well, of a device
used to avoid positive urine test results. On March 13,
2016, the police seized drugs and drug paraphernalia
from the mother’s home. Although the respondent
reported to his clinical psychologist that he never
abused illegal drugs or prescription medication, the
court found that there was overwhelming evidence, by
his own admission in a letter sent to the mother and
from text messages extracted from her cell phone, that
he was using and providing drugs to her and others. It
is well documented, as noted by the court, that the
respondent had continuously denied that he had a sub-
stance abuse problem or needed therapy, and that he
has made very little progress with any mental health
treatment. Lastly, the court noted that the respondent
had failed to provide any documentation of his income
or other proof of his ability consistently to provide for
his three children.
The court found that all of the services offered to
the respondent constituted reasonable efforts at reunifi-
cation, but that the respondent had been unable to
benefit from those reunification efforts.5 The respon-
dent, therefore, has not established his claim that the
court prematurely determined that he failed to rehabili-
tate because the department did not provide him suffi-
cient time and resources to do so.6 The court noted
that the respondent had not achieved sufficient rehabili-
tation through the date of the trial although he had been
given eighteen months to do so. The evidence at trial
amply supported the court’s determination by clear and
convincing evidence that the respondent failed to
achieve an adequate level of rehabilitation within a rea-
sonable time to assume a responsible parenting position
in the lives of his children. There is no evidence to
suggest that any of the court’s subordinate findings
were clearly erroneous.
II
The respondent additionally claims that the court
improperly admitted into evidence transcripts of text
messages extracted from the mother’s cell phone
because the commissioner failed to authenticate prop-
erly the messages by demonstrating a proper chain of
custody for them, and he hints that the text messages
may have been manipulated.
‘‘Our standard of review for evidentiary matters
allows the trial court great leeway in deciding the admis-
sibility of evidence. The trial court has wide discretion
in its rulings on evidence and its rulings will be reversed
only if the court has abused its discretion or an injustice
appears to have been done.’’ (Internal quotation marks
omitted.) Catalano v. Falco, 74 Conn. App. 86, 88, 812
A.2d 63 (2002). ‘‘The [party opposing admission] has
the obligation of affirmatively showing that the evi-
dence was in some way tampered with, altered, mis-
placed, mislabeled or otherwise mishandled to establish
an abuse of the court’s discretion in admitting the evi-
dence.’’ (Internal quotation marks omitted.) State v.
Russo, 89 Conn. App. 296, 301, 873 A.2d 202, cert.
denied, 275 Conn. 908, 882 A.2d 679 (2005). Moreover,
‘‘[a]ny gap or break in the chain of custody goes to the
weight of the evidence rather than its admissibility.’’
Berkshire Bank v. Hartford Club, 158 Conn. App. 705,
713, 120 A.3d 544, cert. denied, 319 Conn. 925, 125 A.3d
200 (2015); see also State v. Barnes, 47 Conn. App. 590,
595, 706 A.2d 1000 (1998) (‘‘It is not necessary for every
person who handled the item to testify in order to estab-
lish the chain of custody. It is sufficient if the chain
of custody is established with reasonable certainty to
eliminate the likelihood of mistake or alteration.’’ [Inter-
nal quotation marks omitted.]).
The respondent asserts in his brief: ‘‘There are serious
concerns . . . that the [mother’s] phone was possibly
tampered with or altered before [being] given to the
[drug enforcement administration] investigative unit, as
there was not a proper chain of custody.’’ The respon-
dent, however, has not provided any evidence support-
ing this allegation. To the contrary, testimonial evidence
from the maternal grandmother and Detective Peter
Trahan, supports the court’s determination that the
chain of custody was sufficiently established. The
maternal grandmother testified that she obtained the
cell phone as part of the mother’s possessions from the
hospital, and within approximately an hour handed it
over to the Newtown Police Department. Detective Tra-
han stated that the Newtown Police Department gave
the cell phone to Detective Michael Chaves of the Mon-
roe Police Department, who conducted the extraction
process. The respondent has failed to establish that the
court abused its discretion in admitting as evidence the
transcripts of the text messages extracted from the cell
phone, and no injustice appears to have resulted from
the admission of that evidence.
The judgments are 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.
** July 25, 2018, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
Because the respondent mother is deceased, we refer to the respondent
father in this opinion as the respondent and to the mother as the mother.
2
Although counsel for the three minor children did not file a brief or
statement as required pursuant to Practice Book § 67-13, during oral argu-
ment before this court, she supported the position of the commissioner.
3
General Statutes § 46b-120 (6) provides in relevant part: ‘‘A child or youth
may be found ‘neglected’ who, for reasons other than being impoverished
. . . (C) is being permitted to live under conditions, circumstances or associ-
ations injurious to the well-being of the child or youth.’’
4
General Statutes § 17a-112 (j) provides in relevant part: ‘‘The Superior
Court . . . 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 . . . 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 . . .
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 . . . .’’
5
The court found that prior to the date of the filing of the petitions for
termination of parental rights, the department made reasonable efforts to
reunify the children with the respondent. Alternatively, the court found by
clear and convincing evidence that, as of the date of its decision, the respon-
dent had been unable to benefit from reunification efforts. See In re Jorden
R., 293 Conn. 539, 554, 979 A.2d 469 (2009) (‘‘although § 17a-112 [j] begins
with a presumptive obligation that the department make reasonable reunifi-
cation efforts, it later excuses this obligation in cases in which a trial court
finds, by clear and convincing evidence, that a parent is unable or unwilling
to benefit from such reunification efforts’’).
6
The court found by the clear and convincing evidence standard that the
respondent was ‘‘unable to achieve rehabilitation within a reasonable period
of time . . . given the age and needs of [his children].’’