In re Nioshka A. N.

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IN RE NIOSHKA A. N.*
(AC 37955)
Sheldon, Prescott and Flynn, Js.
Argued October 8—officially released November 23, 2015**
(Appeal from Superior Court, judicial district of New
Britain, Juvenile Matters, Cohn, J.)
Michael D. Day, for the appellant (respondent
mother).
Jessica C. Torres, 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
PER CURIAM. The respondent mother appeals from
the judgment of the trial court terminating her parental
rights with respect to her daughter, Nioshka.1 We affirm
the judgment of the trial court.
The respondent challenges the trial court’s determi-
nation that the termination of her parental rights was
in the best interest of Nioshka. The respondent bases
this challenge on two alleged errors in the factual find-
ings made by the trial court pursuant to General Statutes
§ 17a-112 (k) (2) and (3).2 The challenged findings are
that the Department of Children and Families (depart-
ment) made reasonable efforts to reunify the respon-
dent with her child and that the department, with the
approval of the court, had followed the specific steps
for reunification. The respondent disputes these find-
ings, and the best interest determination based in part
upon them, because of the department’s alleged failure
to follow the recommendations of the respondent’s
court-appointed psychological evaluator, Eric Frazer,
to: (1) increase the respondent’s visitation with Nioshka
and vary the location of the visits; and (2) have biweekly
communication between the respondent’s supervising
parenting therapist and her treating therapist.
The following facts are relevant to this appeal.
Nioshka, the respondent’s third child,3 was born on
June 23, 2014. Four days later, the petitioner, the Com-
missioner of Children and Families, filed a coterminous
petition4 with respect to Nioshka on the basis of, inter
alia, the respondent’s prior neglect of her older children,
her significant mental health issues, her difficulty
engaging with and relating to her children in a develop-
mentally appropriate way, and her failure to benefit
from the services offered to her while under the depart-
ment’s supervision.
After a two day trial, the trial court first determined,
as alleged in the neglect petition, that Nioshka was
neglected as of the date of the filing of the petition.5
Then it determined, in the adjudicatory phase6 of pro-
ceedings under the termination of parental rights peti-
tion, that statutory grounds existed for the termination
of the respondent’s parental rights with respect to
Nioshka because, despite the department’s reasonable
efforts to reunify her with Nioshka, the respondent had
failed to rehabilitate within the meaning of § 17a-112
(j) (3) (E).7 The court based its conclusion as to the
respondent’s failure to rehabilitate on findings that,
although the respondent had made improvements in
her housing situation, her employment, taking her medi-
cation, and addressing her mental health issues, she
had failed to ‘‘[develop] sufficient parenting skills,’’ and
thus her ‘‘present condition . . . [did] not ‘encourage
the belief that within a reasonable time, considering
the age and needs of the child, [she] could assume a
responsible position in the life of the child . . . .’ ’’ On
that score, the trial court took particular note of the
respondent’s inability to soothe Nioshka and her ten-
dency to handle her roughly during visits. Second, Dr.
Frazer testified that the respondent’s challenges would
not resolve in a reasonable time and said that it was
in Nioshka’s best interest to remain in her foster home.
Third, and most troubling for the trial court, was the
respondent’s continuing contact with Nioshka’s father,
a convicted sex offender who was prohibited from hav-
ing contact with any children,8 about which she lied to
Dr. Frazer. The respondent, it found, maintained con-
tact with the father even after he had violated his parole
in 2013 as a direct result of her allowing him to have
direct contact with one of her other children. The
respondent does not challenge the trial court’s adjudica-
tory determination or any of the predicate factual find-
ings on which it was based.
Finally, in the dispositional phase of the termination
proceeding, the trial court determined that termination
of the respondent’s parental rights was in Nioshka’s best
interest. It based that determination upon the following
findings of fact, which it made as required by § 17a-112
(k): ‘‘(1) Appropriate and timely services were provided
by [the department] to [the respondent], both before
and after the filing of the [termination of parental rights]
petition. [The respondent] has not completed certain
of the services recommended, while others were com-
pleted. [The respondent] is compliant with her medica-
tion regimen. She has not shown a sufficient ability to
parent. (2) The court finds that [the department] made
reasonable efforts to reunify [the respondent] with her
child by putting services in place. (3) [The department],
with the approval of the court, set reasonable and realis-
tic specific steps in order to reunify [the respondent]
with her child. The [respondent] was only partially suc-
cessful in meeting her steps. (4) [The respondent] and
child have a good relationship, but not a successful one
based on [the respondent’s] parental relationship . . . .
(5) The child is eight months old. As indicated, the time
to resolve her placement is of the essence. (6) [The
respondent] has not sufficiently adjusted her circum-
stances to return the child to her care in the foreseeable
future. As indicated, she is still in need of further mental
health counseling and her parenting skills are lacking.
She has not recognized the fact that the biological father
should not have a role in the child’s life. (7) [The respon-
dent] was not prevented from having a meaningful rela-
tionship with the child because of economics or by the
unreasonable act of any person or agency, including
the foster family, or [the department]. [The department]
used reasonable efforts to encourage contact between
the [respondent] and the child.’’ In addition, the court
noted that Nioshka had bonded with her foster parents,
with whom she had been placed since her release from
the hospital after her birth, and that the attorney for
the child had recommended termination.
The respondent challenges the trial court’s best inter-
est determination and two of the findings on which it
was based, claiming that, by failing to implement Dr.
Frazer’s recommendations, the department failed both
to make reasonable efforts to reunify her with her
daughter and to follow the specific step imposed upon
it by court order to ‘‘[i]mplement reasonable recommen-
dations made by service providers . . . .’’
‘‘Our standard of review on appeal from a termination
of parental rights is whether the challenged findings are
clearly erroneous. . . . The determinations reached by
the trial court that the evidence is clear and convincing
will be disturbed only if [any challenged] finding is
not supported by the evidence and [is], in light of the
evidence in the whole record, clearly erroneous.’’ (Inter-
nal quotation marks omitted.) In re Halle T., 96 Conn.
App. 815, 822, 902 A.2d 670, cert. denied, 280 Conn. 924,
908 A.2d 1087 (2006).
We note initially that we disagree with the respon-
dent’s claim challenging the trial court’s two factual
findings on the basis of the department’s alleged failure
to implement Dr. Frazer’s recommendations. Dr. Frazer
initially concluded, and thus reported to the depart-
ment, that there was a possibility that the respondent
could improve her parenting skills to the point that
reunification could occur. To facilitate such improve-
ment, he made recommendations to the department to:
(1) increase the respondent’s visitation with Nioshka
and vary the location of the visits; and (2) have biweekly
communication between the respondent’s supervising
parenting therapist and her treating therapist. The
respondent now argues that the department did not
follow these recommendations. The evidence on the
record, however, was that the department did attempt
to facilitate communication between the respondent’s
therapists by ensuring that they received each other’s
contact information. There is also evidence of record
showing that the department declined to implement
Dr. Frazer’s recommendations as to the frequency and
location of visits on the basis of the social worker’s
observations of the respondent’s chronic difficulties
dealing with her daughter during visits.
Moreover, Dr. Frazer’s initial conclusion that the
respondent could improve her parenting skills changed
markedly after he reviewed reports concerning the
respondent’s unsuccessful visits with Nioshka and
learned that the respondent was continuing her relation-
ship with Nioshka’s father. Dr. Frazer thus concluded,
in his testimony at trial, that, ‘‘[M]ore time [and] more
treatment [for the respondent] is not likely to result in
the kind of changes that would be commensurate with
the child’s needs and [in] the best interest of reunifica-
tion.’’ Thus, the trial court’s findings that the department
followed all court orders applicable to it, and in so
doing made reasonable efforts to reunify the respondent
and her daughter, were not clearly erroneous.
Furthermore, even if the petitioner had failed to
adduce any evidence that would have supported the
court’s two challenged findings under § 17a-112 (k) (2)
and (3), the absence of such evidence would not have
been dispositive on the issue of whether termination
of the respondent’s parental rights was in Nioshka’s best
interest. ‘‘In the dispositional phase of a termination of
parental rights hearing, the trial court must determine
whether it is established by clear and convincing evi-
dence that the continuation of the [respondent’s] paren-
tal rights is not in the best interests of the child. In
arriving at that decision, the court is mandated to con-
sider and make written findings regarding [the] seven
factors delineated in . . . § [17a-112 (k)] . . . .’’
(Internal quotation marks omitted.) In re Halle T.,
supra, 96 Conn. App. 823. ‘‘These seven factors serve
simply as guidelines to the court and are not statutory
prerequisites that need to be proven before termination
can be ordered . . . . We have held, however, that the
petitioner is not required to prove each of the seven
factors by clear and convincing evidence.’’ (Citations
omitted; emphasis in original; footnote omitted; internal
quotation marks omitted.) Id., 840. ‘‘Where . . . the
record reveals that the trial court’s ultimate conclusions
[regarding termination of parental rights] are supported
by clear and convincing evidence, we will not reach an
opposite conclusion on the basis of any one segment
of the many factors considered in a termination pro-
ceeding . . . .’’ (Internal quotation marks omitted.) Id.,
840 n.20.
The ultimate question is, thus, whether the best inter-
est determination of the trial court was clearly errone-
ous in light of the record as a whole. ‘‘[A]n appellate
tribunal will not disturb a trial court’s finding that termi-
nation of parental rights is in a child’s best interest
unless that finding is 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. . . .
‘‘On appeal, our function is to determine whether the
trial court’s conclusion was factually supported and
legally correct. . . . In doing so, however, [g]reat
weight is given to the judgment of the trial court because
of [the court’s] opportunity to observe the parties and
the evidence. . . . We do not examine the record to
determine whether the trier of fact could have reached
a conclusion other than the one reached. . . . [Rather]
every reasonable presumption is made in favor of the
trial court’s ruling.’’ (Citation omitted; internal quota-
tion marks omitted.) In re Davonta V., 285 Conn. 483,
488, 940 A.2d 733 (2008). ‘‘Although a judge [charged
with determining whether termination of parental rights
is in a child’s best interest] is guided by legal principles,
the ultimate decision [whether termination is justified]
is intensely human. It is the judge in the courtroom
who looks the witnesses in the eye, interprets their
body language, listens to the inflections in their voices
and otherwise assesses the subtleties that are not con-
veyed in the cold transcript.’’ (Internal quotation marks
omitted.) In re Nevaeh W., 317 Conn. 723, 740, 120 A.3d
1177 (2015).
Accordingly, even if the department had unreason-
ably failed to implement Dr. Frazer’s recommendations,
the trial court’s best interest determination would still
have been amply supported on this record by its findings
as to the other five factors set forth in § 17a-112 (k),
which the respondent does not challenge on appeal.
We are therefore not persuaded that the trial court’s
best interest determination was clearly erroneous.9
Thus, the trial court did not err in terminating the
respondent’s parental rights.
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.
** November 23, 2015, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
The father consented to the termination of his parental rights and did
not participate in this appeal.
2
General Statutes § 17a-112 (k) states: ‘‘Except in the case where termina-
tion is based on consent, in determining whether to terminate parental rights
under this section, the court shall consider and shall make written findings
regarding: (1) The timeliness, nature and extent of services offered, provided
and made available to the parent and the child by an agency to facilitate
the reunion of the child with the parent; (2) whether the Department of
Children and Families has made reasonable efforts to reunite the family
pursuant to the federal Adoption Assistance and Child Welfare Act of 1980,
as amended; (3) the terms of any applicable court order entered into and
agreed upon by any individual or agency and the parent, and the extent
to which all parties have fulfilled their obligations under such order; (4)
the feelings and emotional ties of the child with respect to the child’s parents,
any guardian of such child’s person and any person who has exercised
physical care, custody or control of the child for at least one year and with
whom the child has developed significant emotional ties; (5) the age of the
child; (6) the efforts the parent has made to adjust such parent’s circum-
stances, conduct, or conditions to make it in the best interest of the child
to return such child home in the foreseeable future, including, but not limited
to, (A) the extent to which the parent has maintained contact with the child
as part of an effort to reunite the child with the parent, provided the court
may give weight to incidental visitations, communications or contributions,
and (B) the maintenance of regular contact or communication with the
guardian or other custodian of the child; and (7) the extent to which a
parent has been prevented from maintaining a meaningful relationship with
the child by the unreasonable act or conduct of the other parent of the
child, or the unreasonable act of any other person or by the economic
circumstances of the parent.’’ (Emphasis added.)
3
The respondent’s parental rights as to her first child were terminated
by consent in 2011. The respondent’s second child was adjudicated neglected
on May 29, 2013, and, on July 17, 2014, the court rendered a judgment
terminating her parental rights regarding that child.
4
A coterminous petition, as filed in this case, is ‘‘the simultaneous filing
of a neglect petition and a termination of parental rights petition on behalf
of the same child . . . .’’ (Internal quotation marks omitted.) In re Brianna
L., 139 Conn. App. 239, 247, 55 A.3d 572 (2012).
5
‘‘When coterminous petitions are filed, the judicial authority first deter-
mines by a fair preponderance of the evidence whether the child or youth is
neglected, abused or uncared for; if so, then the judicial authority determines
whether statutory grounds exist to terminate parental rights by clear and
convincing evidence; if so, then the judicial authority determines whether
termination of parental rights is in the best interests of the child or youth
by clear and convincing evidence. If the judicial authority determines that
termination grounds do not exist or termination of parental rights is not in
the best interests of the child or youth, then the judicial authority may
consider by a fair preponderance of the evidence any of the dispositional
alternatives available under the neglect, abuse or uncared for petition.’’
Practice Book § 35a-3.
6
‘‘A hearing on a petition to terminate parental rights consists of two
phases, adjudication and disposition. . . . In the adjudicatory phase, the
trial court determines whether one of the statutory grounds for termination
of parental rights [under § 17a-112 (j)] exists by clear and convincing evi-
dence. If the trial court determines 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 Aziza S.-B., 138 Conn.
App. 639, 647, 53 A.3d 1001 (2012).
7
General Statutes § 17a-112 (j) states in relevant part: ‘‘The Superior Court
. . . may grant a petition [for termination of parental rights] 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 . . . (2) termination is in the best interest of the
child, and (3) . . . (E) the parent of a child under the age of seven years
who is neglected 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 . . . .’’
We note that the respondent does not challenge the trial court’s determina-
tion under § 17a-112 (j) (1) regarding the department’s reasonable efforts.
She affirmatively asserts in her reply brief that she ‘‘challenges two factual
findings [made] pursuant to . . . § 17a-112 (k) (2) and (3) . . . . [The
respondent] challenges whether termination is in the best interest of the
minor child.’’ (Citations omitted.) We accordingly address the respondent’s
claim regarding the department’s reasonable efforts only within the context
of § 17a-112 (k) (2).
8
The father was convicted in 2003 of three counts of sexual assault in
the first degree and three counts of illegal sexual contact with a minor,
involving sexual intercourse with a twelve year old female.
9
Although our case law has long established that the best interest determi-
nation is subject to clear error review, we are aware that our Supreme Court
in In re Shane M., 318 Conn. 569, 587–88, 122 A.3d 1247 (2015), held that
the failure to rehabilitate ground set forth in § 17a-112 (j) (3) (B) is a legal
determination subject to review under an evidentiary sufficiency standard,
and that this court, in In re James O., 160 Conn. App. 506, 522, A.3d ,
cert. granted on other grounds, 319 Conn. A.3d (2015), held that
the same standard should apply to the reasonable efforts to reunify ground
set forth in § 17a-112 (j) (1). We note that the respondent’s claim does not
implicate § 17a-112 (j) (1); see footnote 7 of this opinion; and we are disin-
clined to reverse decades of precedent from our Supreme Court by declaring
that the best interest ground set forth in § 17a-112 (j) (2) is subject to similar
analysis. That issue need not be decided for two reasons. First, the parties
here have not briefed the issue. Second, the evidence in this case supports
the trial court’s judgment under both standards. Otherwise stated, if the
evidence upon which we have relied in finding that the trial court’s best
interest determination was not clearly erroneous were considered under
the evidentiary sufficiency standard, and, thus, was construed in the light
most favorable to upholding the trial court’s best interest determination;
see In re Shane M., supra, 588; that evidence, so construed, would be
sufficient to prove by clear and convincing evidence that termination of the
respondent’s parental rights was in the best interest of the child.