In re Kylik A.

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and 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 repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
IN RE KYLIK A. ET AL.*
(AC 36721)
DiPentima, C. J., and Prescott and Bear, Js.
Argued September 8—officially released October 16, 2014**
(Appeal from Superior Court, judicial district of
Middlesex, Child Protection Session, Rubinow, J.)
David J. Reich, for the appellant (respondent
mother).
Frank LaMonaca, 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
BEAR, J. The respondent mother, Denice S., appeals
from the judgments of the trial court rendered in favor
of the petitioner, the Commissioner of Children and
Families, terminating her parental rights as to two of
her children,1 Kylik A. and Avion A.2 On appeal, the
respondent claims that the court improperly found that
the Department of Children and Families (department)
made reasonable efforts to reunify her with the chil-
dren, and that she was unable and unwilling to benefit
from the reunification efforts.3 We affirm the judgments
of the court.
The following facts, which were found by the court,
and procedural history are relevant to our review. The
respondent’s involvement with the department began
when she was a child, and she spent two years in foster
care due to maternal abuse. The respondent suffered
additional childhood trauma through abuse in her foster
home, sexual abuse, the death of a close relative, and
bullying at school, and she exhibited behavioral prob-
lems in middle school and high school. She suffered
from depression as a teenager and received medication.
She attended school through the twelfth grade, but did
not graduate. Michael A., the children’s father, and the
respondent met while she was in high school and mar-
ried in March, 2007. Although the two remain legally
married, the respondent was abused physically and ver-
bally by Michael A., and the two separated after the
family came to the department’s attention in late 2008.
The respondent has not had custody of the children
since her separation from Michael A., a period of
approximately six years as of the date of this opinion.
On January 6, 2009, the petitioner imposed a ninety-
six hour hold4 on the children, removing them from
Michael A.’s physical custody and placing them in non-
relative foster care. On January 9, 2009, the court
granted the petitioner’s ex parte motions for orders of
temporary custody, which alleged that the children
were endangered when the respondent assaulted
Michael A.’s girlfriend in front of them. The petitioner
filed neglect petitions for the children that same day,
alleging that the respondent had an unstable housing
history, that she had anger and parenting issues, and
that Michael A. had persistent marijuana abuse issues,
parenting deficits, and that he needed counseling ser-
vices. The court, on January 15, 2009, the scheduled
hearing date, sustained the ex parte orders of temporary
custody with the agreement of each of the respondents,
and the children remained in the custody of the peti-
tioner. On May 8, 2009, the court adjudicated the chil-
dren uncared for and ordered their commitment to the
petitioner. The court, on April 20, 2010, modified this
disposition, and placed the children with Michael A.
under six months of protective supervision, which was
terminated on September 16, 2010.
The department, beginning in 2009, provided a num-
ber of services, and referrals for services, to the respon-
dent. In 2009, the respondent was involved in a
substance abuse treatment program. On June 7, 2010,
the respondent started individual counseling and sub-
stance abuse treatment at Southwest Community
Health Center (SCHC). She was diagnosed with
depressive disorder, and she was determined to be
unable to cope with her multiple life stressors. After
SCHC’s psychiatric and psychosocial assessments, the
respondent refused to try the recommended medica-
tion, claiming to prefer counseling, yet she only sporadi-
cally attended subsequent scheduled therapy sessions.
In July, 2010, the department referred her to anger man-
agement treatment at Connecticut Renaissance. She did
not complete the program, however, and was dis-
charged in August, 2010, for nonattendance. SCHC, on
March 30, 2011, discharged the respondent because of
her failure to progress, and her noncompliance with its
requirements and recommendations.
The petitioner imposed a second ninety-six hour hold
on the children on December 18, 2010, when Michael
A. was arrested for domestic violence against his girl-
friend. On December 22, 2010, the court granted the
petitioner’s ex parte motions for orders of custody, and
the children were placed with their paternal aunt. The
petitioner filed a second set of neglect petitions that
day, alleging that Michael A. had been abusive to the
children and that the respondent had not maintained
a relationship with the children for six months. On
December 30, 2010, the scheduled hearing date, Michael
A. agreed to the new ex parte orders of temporary
custody. On January 7, 2011, the respondent similarly
agreed, the ex parte orders of temporary custody were
sustained, and the court ordered specific steps for each
of the parents to regain custody of the children.
The department, during 2011, continued to provide
the respondent with services and referrals for services.
On March 7, 2011, Child Guidance’s Reconnecting Fami-
lies program (RCF) began providing the respondent
with one supervised and one therapeutically supervised
home visit with the children each week, parenting train-
ing with modeling of positive interaction and nurtur-
ance for the children, help in meeting the children’s
medical and practical needs, education in anger man-
agement, impulse control, domestic violence preven-
tion, and the negative impact of aggression upon
children. RCF assisted the respondent in obtaining
employment and adequate housing. The respondent,
however, maintained uneven contact with RCF during
the spring of 2011, making little progress in developing
parenting skills, anger management, or self-sufficiency.
This lack of progress was evident on March 30, 2011,
when the respondent and her neighbor engaged in a
physical altercation very near the respondent’s room,
in which the RCF worker and the children were present
to celebrate Kylik’s birthday. The respondent returned
to her room with scratches and ripped clothing after
loud arguing, banging, and thudding sounds were heard.
The children became nervous and were removed from
the situation. The respondent was discharged from RCF
on June 29, 2011, for failure to progress when she can-
celled the visit scheduled for that day.
In April, 2011, the department gave the respondent
money for a security deposit on a one bedroom apart-
ment. The department again referred the respondent to
SCHC, but she did not take advantage of the behavioral
health services available at that time. It was not until
July 6, 2011, that the respondent began treatment at
SCHC again. The respondent began SCHC’s anger man-
agement program, and was diagnosed with generalized
anxiety and alcohol abuse. On July 26, 2011, a psycholo-
gist conducted a psychological evaluation of the respon-
dent and interactional evaluation with the children. The
respondent denied having substance abuse problems,
despite testing positive for marijuana. She admitted pre-
vious daily marijuana use, but claimed not to have
smoked ‘‘for a while now.’’ She reported symptoms of
anxiety, including panic attacks, but claimed to have
missed treatment sessions because of ‘‘issues with child
care.’’ The psychologist found that the respondent had
borderline range intelligence and a lower than average
ability to sustain her attention or exert mental control.
Her interactions with the children were positive and
she remained calm despite their active behavior. She
did not appropriately respond and intervene, however,
when the children engaged in potentially dangerous
conduct. The psychologist found that the respondent
needed to complete substance abuse and domestic vio-
lence treatment, and to undergo individual therapy for
her mental health issues.
On August 9, 2011, while still enrolled in SCHC’s anger
management program, the respondent was admitted to
SCHC’s alcohol abuse treatment program. On August
31, 2011, however, the respondent was discharged for
sporadic attendance and lack of participation. Similarly,
on September 13, 2011, the respondent was discharged
from SCHC’s anger management program for noncom-
pliance, after missing three sessions and appearing at
a morning session highly intoxicated.
In November, 2011, the department referred the
respondent to Recovery Management Services for sub-
stance abuse services, and to Project Courage for drug
treatment and mental health counseling. The respon-
dent began treatment with Project Courage that month.
On December 1, 2011, the court adjudicated each of
the children neglected for a second time, ordered the
children committed to the custody and guardianship of
the petitioner, and ordered additional specific steps
supplementing the earlier set. As part of the specific
steps, the court ordered the department to notify the
respondent’s attorney when the respondent did not
comply with any specific step.
The department, during 2012, continued to provide
the respondent with services and referrals for services.
After testing negative for alcohol and drug use on Janu-
ary 18, 2012, the respondent was provided with group
and individual therapy services, as well as domestic
violence, trauma, and parenting services. The depart-
ment also referred the respondent to a Supportive Hous-
ing program in January, 2012, and informed her of
counseling available at the Center for Women and Fami-
lies (CWF).
On May 30 and 31, 2012, approximately three months
after the petitioner filed her petitions to terminate
parental rights, a psychologist performed a psychologi-
cal evaluation of the respondent and an evaluation of
her interaction with the children. The respondent pre-
sented with post-traumatic stress disorder and
depressive disorder, and she admitted that she was still
using alcohol and marijuana ‘‘to cope with stress,’’ and
to ‘‘self-medicate emotional hardship.’’ The psycholo-
gist found that despite years of supportive services, the
respondent still faced difficulties with stress manage-
ment, employment, and housing. The respondent was
appropriately affectionate during the interactional eval-
uation, and she showed an adequate ability to manage
the children in a highly structured environment. She
denied parenting problems, however, while simultane-
ously acknowledging that she gave in to the children’s
demands, and ‘‘that her use of marijuana and alcohol to
cope with depression reflected poor decision making.’’
In August, 2012, the respondent tested negative for
all substances. Additionally, in October, 2012, approxi-
mately six months after the petitioner filed her petitions
to terminate parental rights, the respondent started
counseling with CWF to address her relationship issues
and showed improvement in personal stability with
CWF through February, 2013. This positive develop-
ment occurred, however, approximately four years after
the respondent had voluntarily relinquished physical
custody of the children when she separated from
Michael A.
In November, 2012, Supportive Housing provided the
respondent with a three bedroom apartment, but as of
August, 2013, it, instead of the respondent, was still
paying the rent and utility bills. The respondent briefly
worked at a restaurant after the petitioner’s referral of
her to employment training, but she has had no other
employment.
In addition to these services, the department also
provided the respondent supervised visits with the chil-
dren. After the birth of the respondent’s third child, D,
in May, 2010, the respondent would often bring him to
the visits. Although her parenting improved between
January 24 and September 9, 2011, the respondent dis-
played difficulty paying adequate attention to D while
trying to meet the needs of the children. The respondent
missed approximately one visit per month during this
period. To reduce the children’s distress because of the
respondent’s failure to attend visits, the department
reduced the frequency of visits in September, 2011.
The respondent, however, still failed to visit regularly,
missing at least one and sometimes two visits per
month.
In January, 2012, the department referred the respon-
dent to the Exchange Club for weekly therapeutic visita-
tion and parenting education. The respondent was
taught age appropriate activities for the children, neces-
sary safety, structure, and routine, and discipline and
behavior management. Although the Exchange Club
worked with the respondent for more than one year,
she made limited progress, and she cancelled the visits
scheduled for July 10, August 14, September 18, October
9, 16 and 23, November 6, and December 18, 2012, in
addition to the visits scheduled for January 15 and 22,
and February 5, 2013.
The department, during 2013, continued to provide
the respondent with services and referrals for services.
In March, 2013, the department moved the children’s
visits to Sunday to accommodate the respondent’s res-
taurant work schedule, but when she left that job, she
provided other excuses for her absences from half the
scheduled visits. The respondent cancelled visits with
the children planned for March 5 and 12, April 2 and
14, May 5, 19 and 23, and June 1 and 23, 2013. The
children were out of the state from July 5 to August 7,
2013, but the respondent still did not attend two of the
visits available prior to the start of the termination of
parental rights trial.
The petitioner, on March 1, 2012, filed petitions to
terminate the parental rights of Michael A. and the
respondent. The combined termination of parental
rights trials occurred on September 4 and 5, 2013, and
the court then heard closing arguments on November
27, 2013. In its memorandum of decision filed March
18, 2014, the court found, pursuant to General Statutes
§ 17a-112 (j) (1), that clear and convincing evidence
established both that the department had made reason-
able reunification efforts for the benefit of the respon-
dent and that the respondent was unable or unwilling
to benefit from these efforts.5 The court also found that
clear and convincing evidence established that termina-
tion of parental rights was in the children’s best interest,
as required by § 17a-112 (j) (2). Finally, the court found,
by clear and convincing evidence, that the respondent
had failed to achieve sufficient personal rehabilitation
and that she had no ongoing parent-child relationship
with the children, within the meaning of § 17a-112 (j)
(3) (B) (i) and (D). See footnote 3 of this opinion. The
court granted the petitions and terminated the respon-
dent’s parental rights as to the children.6 This appeal
followed.
We first set forth the relevant standard of review
and the legal principles that inform our analysis. ‘‘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. . . .
‘‘On appeal, our function is to determine whether the
trial court’s conclusion was legally correct and factually
supported. . . . We do not examine the record to deter-
mine whether the trier of fact could have reached a
conclusion other than the one reached . . . nor do we
retry the case or pass upon the credibility of the wit-
nesses. . . . Rather, on review by this court every rea-
sonable presumption is made in favor of the trial court’s
ruling. . . .
‘‘A hearing on a petition to terminate parental rights
consists of two phases, adjudication and disposition.
. . . In the adjudicatory phase, the trial court deter-
mines whether one of the statutory grounds for termina-
tion of parental rights [under § 17a-112 (j)] exists by
clear and convincing evidence. If the trial court deter-
mines 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 Anvahnay S., 128 Conn. App.
186, 190, 16 A.3d 1244 (2011). With these principles in
mind, we turn to the respondent’s claims.
The respondent claims that the court improperly
found that the department made reasonable efforts to
reunify her with the children and that she was unable
or unwilling to benefit from the reunification efforts.
She argues that both findings were clearly erroneous
because the department failed to comply with the court-
ordered specific steps by not notifying the respondent’s
attorney when she did not comply with reunification
services. She further argues, with respect to the finding
that the department made reasonable efforts, that the
court improperly considered reunification efforts only
through the date that the petitioner filed the petitions
for termination of parental rights rather than the date
on which the court approved the permanency plan other
than reunification. We disagree.
Section 17a-112 (j) provides in relevant part: ‘‘The
Superior Court . . . may grant a petition [to terminate
parental rights] . . . if it finds by clear and convincing
evidence that (1) the [department] 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 reunifi-
cation efforts . . . .’’ (Emphasis added.) ‘‘Thus, the
department must prove [by clear and convincing evi-
dence] 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 provides that the department is not
required to prove both circumstances. Rather, either
showing is sufficient to satisfy this statutory element.’’
(Emphasis in original; internal quotation marks omit-
ted.) In re Anvahnay S., supra, 128 Conn. App. 191.
‘‘[I]n determining whether the department has made
reasonable efforts to reunify a parent and a child or
whether there is sufficient evidence that a parent is
unable or unwilling to benefit from reunification efforts,
the court is required in the adjudicatory phase to make
its assessment on the basis of events preceding the date
on which the termination petition was filed. . . . This
court has consistently held that the court, [w]hen mak-
ing its reasonable efforts determination . . . is limited
to considering only those facts preceding the filing of
the termination petition or the most recent amendment
to the petition . . . .’’ (Citations omitted; internal quo-
tation marks omitted.) In re Kyara H., 147 Conn. App.
855, 870–71, 83 A.3d 1264, cert. denied, 311 Conn. 923,
86 A.3d 468 (2014).7
A careful review of the record reveals that there was
clear and convincing evidence to support the court’s
finding that the respondent was unable or willing to
benefit from the department’s reunification efforts. The
respondent was offered numerous services to aid in
attaining reunification, including substance abuse and
alcohol treatment, anger management treatment, indi-
vidual and group counseling, mental health treatment,
assistance with employment and housing, financial
assistance, parenting education, and supervised and
therapeutically supervised visitation. The respondent,
however, continually remained unable or unwilling to
participate in or to benefit from the services provided,
evidenced by her repeated discharges from programs
due to noncompliance, nonattendance, and lack of par-
ticipation, frequent cancellations of scheduled visits,
and limited progress despite years of receiving services
in programs that she attended. The evidence before the
court, thoroughly discussed in its lengthy and detailed
memorandum of decision, more than adequately sup-
ported its determination that the respondent, as of
March 1, 2012, the date the termination of parental
rights petitions were filed, was unable or unwilling to
benefit from the department’s reunification efforts. We,
accordingly, conclude that the court’s finding was not
clearly erroneous. Because we conclude that the court
properly found, on the basis of clear and convincing
evidence, that the respondent was unable or unwilling
to benefit from reunification efforts, we do not reach the
respondent’s claim that the court improperly concluded
that the department made reasonable efforts to reunify
her and the children.
With respect to the respondent’s assertion that the
department failed to comply with the court-ordered
specific steps by not notifying the respondent’s attorney
when she did not comply with reunification services,
except for a department social worker’s testimony relat-
ing to one issue that the respondent had during her
participation in the Exchange Club program in 2012,
we were unable to find any evidence in the record to
support this assertion.8 The respondent did not mention
this claim in her closing argument to the court, or there-
after.9 The court was not put on notice that the respon-
dent relied on it, and did not make any findings in
that regard.
In summary, after a careful review of the respondent’s
briefs and the record, we conclude that the respondent
did not prove clear error by the court in its finding that
the respondent was unable or unwilling to benefit from
reunification efforts, which were provided to her over
several years prior to March 1, 2012. Accordingly, the
trial court did not err in terminating the respondent’s
parental rights.
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.
** October 16, 2014, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
The respondent has another child, D, to whom she gave birth in May,
2010. That child, however, is not a party to these proceedings. Therefore,
we refer to Kylik A. and Avion A. as the children in this opinion.
2
Michael A. is the father of both Kylik A. and Avion A., and was a party
in the termination proceeding. He did not appeal from the decision of the
court terminating his parental rights. Accordingly, we refer to Denice S. as
the respondent.
3
In her brief, the respondent also claims that the court applied an improper
standard in determining that she had no ongoing parent-child relationship
with the children. See General Statutes § 17a-112 (j) (3) (D). Under § 17a-
112 (j), the court may grant a petition to terminate parental rights if the
petitioner proves three elements, by clear and convincing evidence. To
satisfy the third element of the statute, the petitioner must prove at least
one of the grounds for termination enumerated in § 17a-112 (j) (3), by clear
and convincing evidence. In its memorandum of decision, the court found
both that the respondent had failed to achieve sufficient personal rehabilita-
tion and that she had no ongoing parent-child relationship with the children,
within the meaning of § 17a-112 (j) (3) (B) (i) and (D). The respondent
does not challenge on appeal the court’s finding that she failed to achieve
sufficient personal rehabilitation, a finding that provides an independent
alternative basis for upholding the court’s determination that the require-
ments of § 17a-112 (j) (3) had been satisfied. We, therefore, do not reach
the respondent’s claim that the court applied an improper standard in
determining that she had no ongoing parent-child relationship with the
children. See In re Daniel A., 150 Conn. App. 78, 98, 89 A.3d 1040 (only one
of statutory grounds for termination of parental rights need be proved
by clear and convincing evidence), cert. denied, 312 Conn. 911, 93 A.3d
593 (2014).
4
General Statutes § 17a-101g provides in relevant part: ‘‘(e) If the Commis-
sioner of Children and Families, or the commissioner’s designee, has proba-
ble cause to believe that the child or any other child in the household is in
imminent risk of physical harm from the child’s surroundings and that
immediate removal from such surroundings is necessary to ensure the child’s
safety, the commissioner, or the commissioner’s designee, shall authorize
any employee of the department or any law enforcement officer to remove
the child and any other child similarly situated from such surroundings
without the consent of the child’s parent or guardian. The commissioner
shall record in writing the reasons for such removal and include such record
with the report of the investigation conducted under subsection (b) of
this section.
‘‘(f) The removal of a child pursuant to subsection (e) of this section
shall not exceed ninety-six hours. During the period of such removal, the
commissioner, or the commissioner’s designee, shall provide the child with
all necessary care, including medical care, which may include an examina-
tion by a physician or mental health professional with or without the consent
of the child’s parents, guardian or other person responsible for the child’s
care, provided reasonable attempts have been made to obtain consent of
the child’s parents or guardian or other person responsible for the care of
such child. During the course of a medical examination, a physician may
perform diagnostic tests and procedures necessary for the detection of child
abuse or neglect. If the child is not returned home within such ninety-
six-hour period, with or without protective services, the department shall
proceed in accordance with section 46b-129. . . .’’
5
A finding of either of these grounds is sufficient to satisfy the require-
ments of § 17a-112 (j) (1). In re Jorden R., 293 Conn. 539, 556, 979 A.2d 469(2009) (‘‘either finding, standing alone, provides an independent basis for
satisfying § 17a-112 [j] [1]’’).
6
The respondent does not challenge on appeal the court’s findings that
she failed to achieve sufficient personal rehabilitation and that it was in the
best interest of each of the children for her parental rights to be terminated.
Therefore, the only issue on appeal to be considered is the § 17a-112 (j) (1)
claim of the respondent.
7
Practice Book § 35a-7 (a) provides: ‘‘In the adjudicatory phase, the judi-
cial authority is limited to evidence of events preceding the filing of the
petition or the latest amendment, except where the judicial authority must
consider subsequent events as part of its determination as to the existence
of a ground for termination of parental rights.’’
Thus, although the court was limited to matters occurring prior to March
1, 2012, to determine, pursuant to § 17a-112 (j) (1), whether the department
had made reasonable efforts to reunify, or that the respondent was unable
or willing to benefit from those reunification efforts, the court could consider
matters occurring after the March 1, 2012 filing of the termination of parental
rights petitions when it was considering the issue pursuant to § 17a-112 (j)
(3) (B) (i) of whether the degree of the respondent’s rehabilitation was
sufficient to foresee that she could resume a proper parental role in the
children’s lives within a reasonable time. In re Kyara H., supra, 147 Conn.
App. 865.
8
Another department social worker testified earlier in the trial that she
had e-mailed the respondent’s attorney notices of the respondent’s failure
to comply with the specific steps. Additionally, although the court allowed
counsel to question the department social worker on cross-examination
about who in the department was aware that the respondent’s attorney
was not contacted when the respondent did not attend the Exchange Club
program, the court stated that it ‘‘may determine under all the circumstances
that it carries no weight.’’
9
By way of example, the respondent did not ask the court to articulate
whether it found that the department failed to comply with any of the
specific steps applicable to it.