In re Peter L. ( 2015 )

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IN RE PETER L.*
(AC 37231)
Beach, Mullins and Bishop, Js.
Argued May 21—officially released June 30, 2015**
(Appeal from Superior Court, judicial district of New
London, Juvenile Matters at Waterford, Driscoll, J.)
Percy L., self-represented, the appellant
(respondent).
Lindsay M. Savona-Donka, for the appellee (peti-
tioner).
Don M. Hodgdon with whom was Jammie L. Middle-
ton, for the minor child.
Opinion
PER CURIAM. In this appeal from the judgment of
the trial court terminating the parental rights of the
respondent, Percy L., as to his minor son, Peter L., the
respondent claims that the evidence adduced at trial
was insufficient to justify the termination of his parental
rights and that he was denied the effective assistance
of counsel at trial. We affirm the judgment of the
trial court.1
The following factual summary is pertinent to our
resolution of the issues on appeal. Peter L. was born
in 2008. He is the biological son of the respondent and
the petitioner, Elizabeth E., who were married in 2008
and divorced in 2010. During Peter L.’s. infancy, vio-
lence erupted between his parents, resulting in the
imposition of restraining orders and protective orders
in favor of the petitioner, including a no contact order
restraining the respondent from engaging in various
unwanted behaviors. In 2010, while such orders were
in place, the respondent kidnapped the petitioner at
gunpoint while she had been operating a motor vehicle,
took over her vehicle, and drove a distance until the
police intercepted the vehicle after she was able to
obtain help at a highway stop. During this episode,
the respondent, while pointing what appeared to be a
handgun at the petitioner, threatened to kill her and to
take his own life.2 This criminal conduct resulted in the
respondent’s arrest and subsequent conviction, on his
guilty plea, of kidnapping in the first degree with a
firearm in violation of General Statutes § 53a-92a, and
criminal violation of a restraining order in violation of
General Statutes § 53a-223b. On November 9, 2012, the
respondent was given a total effective sentence of fif-
teen years imprisonment, execution suspended after
eight years. The court also imposed a standing protec-
tive order in favor of the petitioner to continue in effect
until 2052.3
When the respondent and the petitioner separated,
Peter L. was approximately eleven months old. Before
his incarceration and while the marital dissolution was
pending, the respondent exercised visitation rights with
Peter L. on fifteen occasions but, on many of them,
Peter L. was left with others and not cared for by the
respondent. In its decision, the trial court commented
that the respondent exercised visitation rights approxi-
mately fifteen times, despite opportunities for more,
and that he often exercised this visitation as a matter
of right but not interest. During Peter L.’s infancy, the
respondent failed to provide adequate support for him
as well, resulting in the finding of a child support arrear-
age at the time of the divorce.
For the first two years of his incarceration, the
respondent made minimal efforts to have contact with
Peter L. by correspondence and made no efforts to have
his son brought to him. Also, the respondent made no
efforts to obtain any of Peter L.’s medical records or
to learn of his progress in school. Beginning in 2012,
the respondent did make several unsuccessful efforts
to see Peter L. Peter L. was approximately eighteen
months old when he last saw the respondent.
During the separation of the respondent and the peti-
tioner, she met another man whom she subsequently
married in 2013. They now have a biological child
together. She, her husband, their child, and Peter L. all
reside together as a family unit. Peter L., who is now
called by a different name, has no recollection of the
respondent and no understanding that the respondent
is his biological father. His stepfather desires to
adopt him.4
On March 21, 2013, the petitioner filed a petition in
the New London Children’s Probate Court to terminate
the parental rights of the respondent to Peter L. pursu-
ant to General Statutes § 45a-717. That petition was
subsequently transferred to the Superior Court for Juve-
nile Matters in the New London Judicial District. In her
petition, the petitioner alleged, as grounds for termina-
tion, that the respondent had abandoned Peter L. pursu-
ant to § 45a-717 (g) (2) (A), that Peter L. had been
denied the care necessary for his well-being as a result
of the respondent’s acts of omission or commission
pursuant to § 45a-717 (g) (2) (B), and that there was
no ongoing relationship between the respondent and
Peter L. pursuant to § 45a-717 (g) (2) (C). After a three
day hearing, the court found that the petitioner had
proven, by clear and convincing evidence, each of the
grounds alleged in the petition and that termination of
the respondent’s parental rights would be in Peter L.’s
best interest. This appeal followed.
‘‘We begin by setting forth the statutory requirements
for granting a petition for the termination of parental
rights. A hearing on a petition to terminate parental
rights consists of two phases, adjudication and disposi-
tion. . . . If the trial court determines that a statutory
ground for termination exists [by clear and convincing
evidence], it proceeds to the dispositional phase. In the
dispositional phase, the trial court determines whether
termination is in the best interest of the child. . . .
‘‘Our standard of review on appeal from a termination
of parental rights is limited to whether the challenged
findings are clearly erroneous. . . . A finding is clearly
erroneous when either there is no evidence in the record
to support it, or the reviewing court is left with the
definite and firm conviction that a mistake has been
made. . . . [G]reat weight is given to the judgment of
the trial court because of [the trial court’s] opportunity
to observe the parties and the evidence. . . . [An appel-
late court does] not examine the record to determine
whether the trier of fact could have reached a conclu-
sion other than the one reached. . . . [Rather] every
reasonable presumption is made in favor of the trial
court’s ruling.’’ (Footnote omitted; internal quotation
marks omitted.) In re Oreoluwa O., 157 Conn. App. 490,
496–97, A.3d (2015).
The respondent claims that the evidence adduced at
trial was insufficient to warrant the termination of his
parental rights to Peter L. We are not persuaded. It is
apparent from the record that the court heard ample
evidence that would support the termination of the
respondent’s parental rights on the basis of any of the
grounds alleged.
With respect to the ground of abandonment, the court
heard and credited evidence that during Peter L.’s
infancy, while his parents were separated, the respon-
dent asserted his rights to visitation with Peter L., but
on many of those occasions he actually left the child
in the care of others. The court also heard evidence
that in the first two years of his incarceration, the
respondent made scant effort to be in communication
with the child and made no effort to have the child
brought to him. To be sure, incarceration alone does
not constitute abandonment. See In re Juvenile Appeal
(Docket No. 10155), 187 Conn. 431, 443, 446 A.2d 808
(1982). The court reasonably could consider, however,
the respondent’s lack of genuine interest in Peter L.
during his infancy and the respondent’s failure to make
any meaningful efforts to be in communication with
Peter L. during the first two years of his incarceration.
In this regard, the court could also assess, from the
evidence adduced at trial, the respondent’s level of
apparent interest in the child before his incarceration
both in regard to the number of times he actually sought
to care for him and his failure to adequately support the
child during his period of separation from the petitioner
until his incarceration.
As to the ground concerning the denial of care as a
result of the respondent’s acts of commission or omis-
sion, the court heard and was entitled to credit testi-
mony regarding the respondent’s abduction of the
petitioner, his threats to kill her and himself, as well
as the imposition and subsequent violation by the
respondent of restraining and protective orders necessi-
tated by his abusive behavior toward the petitioner. Cf.
In re Sean H., 24 Conn. App. 135, 144–45, 586 A.2d 1171,
cert. denied, 218 Conn. 904, 588 A.2d 1087 (1991).
In regard to the third ground for termination, that
there is no ongoing parent-child relationship between
the respondent and Peter L., this ground is essentially
uncontested. Evidence adduced at trial made it clear
that Peter L. does not know the respondent as his father
and has no recollection of him.
Finally, in regard to the dispositional phase of a peti-
tion to terminate parental rights, the record amply sup-
ports the court’s determination that termination of the
respondent’s rights is in Peter L.’s best interest. The
court heard and was entitled to credit evidence that
Peter L. is living in a stable family environment with
his mother, a sibling, and a stepfather who wishes to
adopt him. In sum, the evidence adduced at trial was
more than adequate to justify, by the applicable stan-
dard of proof, the termination of the respondent’s
parental rights.
The respondent also claims on appeal to this court
that he was denied the effective assistance of counsel
at trial. ‘‘In Connecticut, a parent who faces the termina-
tion of his or her parental rights is entitled, by statute,
to the assistance of counsel. . . . Because of the sub-
stantial interests involved, a parent in a termination of
parental rights hearing has the right not only to counsel
but to the effective assistance of counsel.’’ (Citation
omitted; footnote omitted; internal quotation marks
omitted.) In re Alexander V., 223 Conn. 557, 569, 613
A.2d 780 (1992). Moreover, a parent whose rights have
been terminated may assert, on direct appeal, that he
or she was deprived of the right to the effective assis-
tance of counsel at trial. See In re Jonathan M., 255
Conn. 208, 235, 764 A.2d 739 (2001). ‘‘In determining
whether counsel has been ineffective in a termination
proceeding, [this court has] enunciated the following
standard: The range of competence . . . requires not
errorless counsel, and not counsel judged ineffective
by hindsight, but counsel whose performance is reason-
ably competent, or within the range of competence
displayed by lawyers with ordinary training and skill
in [that particular area of the] law. . . . The respondent
must prove that [counsel’s performance] fell below this
standard of competency and also that the lack of compe-
tency contributed to the termination of parental rights.
. . . A showing of incompetency without a showing of
resulting prejudice . . . does not amount to ineffective
assistance of counsel.’’ (Internal quotation marks omit-
ted.) In re Dylan C., 126 Conn. App. 71, 91, 10 A.3d
100 (2011).
As noted, it is the responsibility of the respondent to
demonstrate trial counsel’s ineffectiveness by reference
to the record and not merely by allegation. In the case
at hand, the respondent’s claim that his trial lawyer
was ineffective is unsupported by any reference to the
record. Indeed, when asked by the trial judge whether
he was satisfied with his trial counsel, the respondent
answered: ‘‘One hundred percent.’’ The circumstances
we confront are like those found by this court in the
case of In re Dylan C., supra, 126 Conn. App. 71,
although that case involved a termination of parental
rights granted on a different ground. In In re Dylan C.,
this court held: ‘‘[W]e need not decide whether the
respondent’s counsel provided assistance that fell
below that of lawyers with ordinary training in termina-
tion of parental rights cases because the respondent
has not demonstrated that her counsel’s representation
resulted in prejudice to her.’’ Id., 91–92. This court fur-
ther stated: ‘‘Here, the respondent has not identified
where in the record, and we found nowhere in the
record, that she alerted the court to her dissatisfaction
with counsel and asked the court to appoint new coun-
sel. Nowhere in its memorandum of decision or in the
transcript of the trial did the trial court give any indica-
tion that the respondent was not receiving effective
assistance of counsel. The record discloses that the
respondent’s parental rights were terminated on the
strength of the petitioner’s case [on the ground alleged
in the petition].’’ (Footnote omitted.) Id., 93. Just as in
the case of In re Dylan C., where the respondent
pointed to nothing in the record to support her claim
that trial counsel was ineffective, here, as well, the
respondent has not supported his allegation by refer-
ence to any supporting part of the record. Mere allega-
tions of ineffectiveness, unsubstantiated by the record,
are inadequate to support a finding of ineffectiveness.
The respondent has failed to demonstrate that trial
counsel was ineffective.
The judgment is affirmed.
* 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.
** June 30, 2015, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
In his brief, the respondent asserts, as well, that ‘‘color’’ was a factor in
the court’s decision. We assume, from this claim, that the respondent claims
that race or culture, in some manner, influenced the trial’s outcome. Other
than this incendiary assertion, however, the respondent points to no
instances in the record that relate to the race or culture of any of the
interested parties. Nor does he, in his brief, provide any factual underlayment
or legal support for the reviewability of this assertion newly minted for
appeal. As this court has often stated, we are not required to review, on
appeal, issues improperly presented on appeal through an inadequate brief.
See In re Dorrell R., 64 Conn. App. 455, 469, 780 A.2d 944 (2001).
2
In its decision terminating the respondent’s parental rights, the court,
Driscoll, J., stated that what may have appeared to be a handgun was later
determined to have been a pellet pistol.
3
While the respondent’s legal status in the United States is not clear from
the record, the record reflects that he was born in Peru and that he anticipates
that, upon release from the custody of the Commissioner of Correction,
there is the likelihood that he may be deported from the United States.
4
At trial, a counselor from the Department of Children and Families
(department) testified in support of the termination petition and also offered
the department’s support for stepparent adoption.