In re Quamaine K.

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IN RE QUAMAINE K., JR., ET AL.*
(AC 38532)
DiPentima, C. J., and Lavine and Sheldon, Js.
Argued March 14—officially released April 8, 2016**
(Appeal from Superior Court, judicial district of
Hartford, Juvenile Matters, Lobo, J.)
Benjamin M. Wattenmaker, assigned counsel, for the
appellant (respondent mother).
Stephen G. Vitelli, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, Gregory T. D’Auria, solicitor general, and Benja-
min Zivyon, assistant attorney general, for the
appellee (petitioner).
Opinion
LAVINE, J. The respondent mother, OV, appeals from
the judgments of the trial court terminating her parental
rights with respect to three of her children, Q, U, and
N.1 In the termination of parental rights petitions, the
petitioner, Commissioner of Children and Families,
alleged pursuant to General Statutes § 17a-112 (j) (3)
(B) (i) that the respondent had failed to achieve such
degree of personal rehabilitation as would encourage
the belief that within a reasonable time, considering
the ages and needs of her children, she could assume
a responsible position in their lives. On appeal, the
respondent claims that the trial court, Lobo, J., (1) erred
in finding that, given her intellectual disability, the
Department of Children and Families (department) had
made reasonable efforts to reunify her with her chil-
dren, and (2) abused its discretion and violated her
federal constitutional right to due process by failing to
hold, sua sponte, a hearing to determine her compe-
tency to stand trial. We affirm the judgments of the
trial court.
The court made the following findings of fact. The
respondent has been involved with the department both
as a child and as a parent. She was born in Puerto Rico
in 1980. When she was five years old, her mother moved
to Hartford, leaving the respondent to live with paternal
relatives. The respondent was reunited with her mother
in Hartford when she was nine years old. The respon-
dent has never completed high school.
Between the ages of fourteen and sixteen, the respon-
dent began to sell illegal substances and abuse mari-
juana and PCP. She was arrested and placed on
probation for two years. When she was eighteen, the
respondent assaulted a police officer. She was con-
victed and served two years at York Correctional Insti-
tution, followed by five years of probation.2 About this
time, the respondent attempted to commit suicide. She,
therefore, received mental health and medication man-
agement services through Hartford Behavioral Health
and housing assistance at a YMCA shelter.
The respondent’s children mentioned in this opinion
are S, who was born in 2002; KP, who was born in 2004;
KW, who was born in 2006; Q, who was born in 2007;
U, who was born in 2010; and N, who was born in 2012.3
As a parent, the respondent has been involved with the
department since 2000, and neglect allegations regard-
ing one or more of her six children have been substanti-
ated at least nine times. When the respondent gave birth
to S, the baby tested positive for PCP. In June, 2004
SP, the father of S and KP, while in the presence of
those children, choked the respondent, rendering her
unconscious. The respondent, however, lied to the
police about the incident because she did not want SP
to get in trouble. The department intervened to encour-
age the respondent to engage in domestic violence ser-
vices offered by Interval House. In January, 2007, the
respondent was referred to Intensive Family Preserva-
tion through the Klingberg Family Center (Klingberg).
The respondent completed the program offered by Klin-
gberg and continued to receive services from Hartford
Behavioral Health.
On November 27, 2007, the respondent gave birth to
Q, who also tested positive for PCP. On November 30,
2007, the petitioner filed neglect petitions on behalf of
Q, S, KP, and KW. The court adjudicated Q, S, KP, and
KW neglected in April, 2008, but let them live with
the respondent under a one year order of protective
supervision, which ended on October 14, 2008. On
August 26, 2008, the respondent completed an outpa-
tient substance abuse program. In May, 2010, the depart-
ment recommended that the respondent participate
three days a week in an outpatient substance abuse
group.
In June, 2013, the respondent married QK and ‘‘cele-
brated’’ by using PCP and sharing a pint of Bacardi
rum. During the spring of 2013, the respondent was
observed to have a black eye on several occasions,
including on June 11, 2013, following a domestic inci-
dent between her and the mother of QK’s other children.
That month, the respondent was $3000 behind in her
rent and more than $1800 and $1900 behind in gas
and electric payments, respectively. She left her six
children, ranging in age from five months to eleven
years, home alone with no food or milk in the apartment.
The children were sleeping on the floor on bare mat-
tresses and some of them were sleeping with the respon-
dent. On June 12, 2013, the respondent was not
forthcoming to Hartford police regarding QK’s where-
abouts, although he was present in the apartment. QK
had violated his probation by engaging in domestic vio-
lence with the respondent. On June 13, 2013, the respon-
dent attended a school conference for one of her
children and was observed to slur her words as if she
were under the influence of an intoxicating substance.
That same day, QK’s probation officer found the respon-
dent to be incoherent, as he had on prior occasions.
The police involuntarily committed her for seventy-two
hours and referred her for counseling and substance
abuse screening.
On June 15, 2013, the respondent was receiving inpa-
tient care, and she tested positive for PCP. She was
diagnosed with hallucinogen and alcohol abuse, major
depressive disorder, and posttraumatic stress disorder.
A clinician at the Wheeler Clinic observed the respon-
dent in a labile mood, talking incoherently, and making
threatening statements. Although six daily medications
had been prescribed for her, she had run out of her
medications because she had failed to pick them up.
The following procedural history is relevant to the
present appeals. On June 22, 2013, the petitioner took
custody of all six of the respondent’s children on a
ninety-six hour hold. The court, Westbrook, J., granted
the petitioner temporary custody of the children, find-
ing that they were in immediate physical danger from
their surroundings, and ordered preliminary specific
steps for the respondent. The court sustained the order
of temporary custody on June 28, 2013. On October 30,
2013, the court, T. Santos, J., adjudicated the children
neglected and committed them to the custody of the
petitioner and finalized specific steps for the respon-
dent.4 On August 21, 2014, the petitioner filed termina-
tion of parental rights petitions concerning Q, U, and
N. On April 7, 2015, Judge Lobo appointed a guardian
ad litem for the respondent. On April 21, 2015, he
approved the permanency plan for termination of paren-
tal rights and adoption for the children.5 The court ter-
minated the respondent’s parental rights in Q, U, and
N by memorandum of decision filed on September 30,
2015. Additional facts will be set out as necessary.
The standard for termination of parental rights in a
child is well known. ‘‘A hearing on a petition to termi-
nate 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 evidence. If the
trial court determines that a statutory ground for termi-
nation exists, it proceeds to the dispositional phase
. . . [in which] the trial court determines whether ter-
mination is in the best interests of the child.’’ (Footnote
omitted; internal quotation marks omitted.) In re Etta
H., 146 Conn. App. 751, 755–56, 78 A.3d 295 (2013).
I
The respondent’s first claim is that the court erred
in finding, for the purposes of § 17a-112 (j) (1),6 that
the department had made reasonable efforts to reunify
her with the children in light of the fact that she has
an IQ of 60, which the department did not take into
consideration when determining what reasonable
efforts to make toward reunification. We disagree.
Our Supreme Court has clarified the standard of
review for judgments terminating parental rights. See
In re Shane M., 318 Conn. 569, 122 A.3d 1247 (2015).
It held that ‘‘clear error review is appropriate for the
trial court’s subordinate factual findings, [it] now recog-
nize[s] that the trial court’s ultimate conclusion of
whether a parent has failed to rehabilitate involves a
different exercise by the trial court. 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, [it] now believe[s] that the appropriate
standard of review is one evidentiary sufficiency, that
is, whether the trial court could have reasonably con-
cluded, upon the facts established and the reasonable
inferences drawn therefrom, that the cumulative effect
of the evidence was sufficient to justify [the trial court’s]
[ultimate conclusion].’’ (Emphasis omitted; footnote
omitted; internal quotation marks omitted.) Id., 587–88.
‘‘Similarly, the court’s determination as to whether the
department made reasonable efforts toward reunifica-
tion is a legal conclusion drawn from the court’s subor-
dinate factual findings. Therefore, we apply a clearly
erroneous standard of review as to the court’s underly-
ing factual findings, and we review the court’s legal
determinations of reasonable efforts and of failure to
rehabilitate for sufficient evidence.’’ In re Victor D.,
161 Conn. App. 604, 612, 122 A.3d 1247 (2015). In the
present case, the respondent does not challenge the
court’s underlying factual findings, only its conclusion
that the department made reasonable efforts to reunify
her with the children.
Judge Lobo made the following additional findings
of fact as to the services provided to the respondent.
Following the removal of the children from the respon-
dent’s care in 2013, the Visiting Nurses Association ini-
tially administered and monitored the respondent’s
medication twice a day, and then progressed over time
to once a day, three times a week, and, by March,
2015, twice a week. The Recovery Specialist Voluntary
Program was providing case management services in
the community for the respondent. She had been
referred for counseling and substance abuse screening,
but she did not comply with the evaluation. She visited
with the children weekly.
On August 15, 2013, the department referred the
respondent to three different agencies for domestic vio-
lence counseling. The respondent began to receive
domestic violence counseling at Interval House, but
discontinued it by January, 2014, indicating that she did
not need domestic violence support. Also, in August,
2013, Wheeler Clinic recommended inpatient treatment
for the respondent due to her behavior, PCP use, and
possible cognitive impairment. She was diagnosed with
PCP dependence, cannabis abuse, major depressive dis-
order, and post-traumatic stress disorder. The clinicians
at Wheeler Clinic opined that the respondent had poor
insight and impaired judgment and recommended that
she attend a women’s relapse prevention program. At
the time, the respondent was receiving mental health
care at Hartford Behavioral Health.
Again, in August, 2013, the respondent was referred
to the Klingberg Parenting Education Program. She
began the program in September, 2013, but failed to
complete it. However, she was permitted to reenter the
program in January, 2014, and ultimately received a
certificate of completion in April, 2014. While she
attended the program, the respondent often appeared
to be under the influence of intoxicating substances or
cognitively impaired. Her thoughts often were irrational
and incoherent. The managers of the program were
concerned about the respondent’s ability to understand
the information and administer the parenting methods
and strategies they presented to her.
In November, 2013, the respondent submitted a sam-
ple of her hair for drug testing; her sample tested posi-
tive for PCP. Community Renewal Team conducted a
substance abuse evaluation of the respondent and rec-
ommended an intensive outpatient program for her.
The respondent completed the six week program, but
refused subsequent requests for hair testing. As of
March, 2014, the respondent was unemployed, and the
department had assisted her to find housing. In April,
2014, the respondent submitted a sample of her hair
for testing; again the sample was positive for PCP in
all segments going back three months.7 Community
Renewal Team’s discharge plan for the respondent was
to continue her mental health and substance abuse
treatment and her medication management. In October,
2014, the respondent’s hair sample was negative for
all substances.
The respondent engaged with a therapist at Hartford
Behavioral Health to address her post-traumatic stress
disorder, adjustment disorder with mixed anxiety and
depression, dysthymic disorder, and substance abuse.
Initially, the respondent met with her therapist weekly;
but she reduced the frequency of her visits over time
to once a month. She returned for weekly sessions,
however, when she had relapses of anxiety and depres-
sion, most recently in April, 2015. Her therapist opined
that the respondent was committed and goal-oriented
and had demonstrated an ability to manage emotions
and resolve issues. Nonetheless, the therapist opined
that the respondent still requires individual counseling
to deal with her symptoms and coping skills; ‘‘she is a
work in progress.’’ When the respondent last saw her
therapist on May 14, 2015, the therapist informed her
that she was to continue therapy twice per week.
The Visiting Nurses Association has continued to
monitor and administer the respondent’s medication.
The schedule has progressed from twice a day visits to
once a day, to three times a week in June, 2014, and
twice a week in March, 2015. The respondent takes five
pills in the morning, two at noon, four in the evening,
and four at bed time.
In November, 2013, the respondent and QK were per-
mitted to visit with all six children under the supervision
of Beacon Light, but both parents were defiant and
oppositional toward the staff. The respondent’s
response to parenting instruction was not positive, and
she had difficulty managing the children. Beacon Light,
therefore, withdrew from its supervisory role in May,
2014.
In October, 2014, the department provided two social
workers to supervise the respondent’s two hour weekly
visits with the children at a McDonald’s restaurant.
Although the respondent visited her children consis-
tently, the department had concerns about her ability
to parent. During the supervised visits, the respondent
was unable to set limits for the children or to redirect
their behavior. She did not interact with them after
they ate their meal. The respondent only intervened
in disruptive situations when she was prompted by a
supervisor. Department personnel noted that the
respondent had difficulty processing information and
articulating her thoughts.
During one such visit in March, 2015, the respondent
was unable to control the children, who were crying,
crawling on tables, or talking back to her. She bought
them ice cream sundaes for breakfast to settle them
down. During a visit in April, 2015, the respondent failed
to address, without prompting, what appeared to be
fighting among the children. She also encouraged them
to come by her home, in disregard of the department’s
rules. In May, 2015, two of the older children were
talking too loudly, and the respondent stated that she
was about to ‘‘slap the shit out of them.’’ During the
same visit, the respondent told S that she watched peo-
ple ‘‘sucking each other at the foster home,’’ which
caused the older children to act out further. On the
drive home, the respondent stated to QK, in front of
the children, that she did not wish to reunify with the
two older children. During the supervised visit of June
20, 2015, the respondent called U a ‘‘cheating bitch’’ in
reference to a game U was playing.
By the time of trial, the respondent had obtained
housing and was residing with QK. She also was work-
ing as a home health aide, assisting people with disa-
bilities.
The court made findings of the respondent’s mental
health diagnoses on the basis of the court-ordered eval-
uations conducted and authored by Logan Green, an
expert in neuro-, clinical, and forensic psychology.8
Green diagnosed the respondent as suffering from mild
intellectual development disorder, mild neurocognitive
disorder (acquired brain injury), major depressive dis-
order, and post-traumatic stress disorder. Green opined
that attention deficit hyperactivity disorder needed to
be ruled out.
The court found that the respondent had failed to
rehabilitate within the meaning of § 17a-12 (j) (3) (B)
(i). The court’s finding was predicated in part on Green’s
opinion that, at the time he evaluated the respondent in
November and December, 2014, she had not yet shown
sufficient competence in caring for her own needs and
was unable to place the needs of her children above
her own. Green also opined that the issues the respon-
dent was dealing with could not be handled within a
year’s time and there was no indication that the respon-
dent’s attention difficulties could be assuaged. She
lacked motivation to complete domestic violence coun-
seling, failed to absorb parenting information, and dis-
continued individual counseling. Moreover, the
respondent continued to exhibit inappropriate behavior
during her visits with the children and failed to inter-
vene with the children when necessary.
The court found by clear and convincing evidence
that the department had made reasonable efforts to
locate the respondent for purposes of § 17a-112 (j) (1)
and had assisted the respondent by connecting her with
multiple therapeutic providers, social services, and visi-
tation resources, including the Village for Families and
Children, My People Clinical Services, Community
Renewal Team, Wheeler Clinic, Klingberg, Interval
House, Supportive Housing for Families, Hartford
Behavioral Health, and the Visiting Nurses Association.
The court also found by clear and convincing evidence
that the department had made reasonable efforts to
reunify the respondent with the children.
The court found that the children had been removed
from the respondent’s care and adjudicated neglected
due to the respondent’s substance abuse, domestic vio-
lence, failure to address mental health issues, failure
to comply with medications, parenting deficits, and
unstable housing. The respondent minimized the inci-
dents of domestic violence to avoid getting the perpetra-
tors into trouble, which is part of her psychological
profile of perceiving aggressiveness as a natural part of
human interaction. It also is a result of the respondent’s
placing her needs over those of the children and her
inability to provide proper child care. Discontinuing
domestic violence counseling at Interval House is an
example of how the respondent has minimized the vio-
lence she has suffered and fails to recognize the psycho-
logical, emotional, and physical harm to which she has
subjected her children.
The court also found that the respondent faces signifi-
cant challenges in addressing her mental health issues
and not recognizing the effect those issues have on
her ability to parent the children. Green described the
respondent’s profile as indicative of severe psychopa-
thology with multiple psychopathological symptoms
that affect her cognitive functioning. Moreover, in late
2014, the issues the respondent was dealing with could
not be resolved within a year, and Green did not believe
that the respondent’s attention difficulties could be
overcome.
On appeal, the respondent relies heavily on the rec-
ommendations Green offered in his report to substanti-
ate her claim that the department failed to make
reasonable efforts to reunify her with the children given
her intellectual limitations. Specifically she points to
Green’s recommendation that she receive marital ther-
apy for persons who are intellectually disabled and
cognitively compromised. Moreover, Green opined that
the services of a bilingual therapist are required and
treatment requests and suggestions must be communi-
cated in a way that assures the provider that the respon-
dent understood them.
In response to the respondent’s claim, the petitioner
highlights the serious and numerous issues the respon-
dent was facing at the time the children were removed
from her care in June, 2013: substance abuse, domestic
violence, mental health problems, poor parenting skills,
and unstable housing. The petitioner then recounts all
of the services provided to the respondent prior to
the adjudication date, August 21, 2014, which included
individual psychotherapy to address her mental health
and substance abuse issues, referrals to domestic vio-
lence programs, medication management provided by
the Visiting Nurses Association, locating adequate hous-
ing and paying a portion of the rent and security deposit.
In addition to parenting classes and instruction, which
the respondent often rejected, Klingberg and Beacon
Light arranged hands-on visitation for the respondent
with the children. The petitioner, too, relies on Green’s
evaluation in support of her position that the depart-
ment made reasonable efforts to reunify the respondent
with the children, specifically his opinion that ‘‘the most
important service at this point is that of a visiting nurse
who can administer [the respondent’s] medications as
often as needed throughout the day.’’ The petitioner
also notes that the crux of the respondent’s argument
is that the department did not implement all of Green’s
recommendations, which were authored months after
the adjudication date.9
In considering whether the department made reason-
able efforts, ‘‘[t]he word reasonable is the linchpin on
which the department’s efforts in a particular set of
circumstances are to be adjudged, using the clear and
convincing standard of proof. Neither the word reason-
able nor the word efforts is, however, defined by our
legislature or by the federal act from which the require-
ment was drawn. . . . [R]easonable efforts means
doing everything reasonable, not everything possible.’’
(Internal quotation marks omitted.) In re Samantha C.
268 Conn. 614, 632, 847 A.2d 883 (2004). The department
is required to take into consideration a respondent’s
mental condition when determining what reasonable
efforts to make at reunification. In re Antony B., 54
Conn. App. 463, 475, 735 A.2d 893 (1999). The court
considers events that have occurred prior to the date
the petition was filed to determine whether reasonable
efforts at reunification were made. See In re Shaiesha
O., 93 Conn. App. 42, 48, 887 A.2d 415 (2006). In the
present case, the petitions for termination of the respon-
dent’s parental rights were served on August 21, 2014.
On the basis of our review of the record, the briefs,
and the arguments of the parties, we conclude that the
court’s finding by clear and convincing evidence that
the department made reasonable efforts to reunify the
respondent with Q, U, and N was not in error. The
department assisted the respondent by referring her to
numerous social service agencies and medical provid-
ers to deal with her needs and to help her complete
the specific steps toward reunification ordered for her.
The role of the Visiting Nurses Association in assuring
that the respondent took her medication cannot be over-
stated given the respondent’s significant mental health
and substance abuse issues, which addressed what
Green described as the respondent’s most pressing
need. Green also opined that in addition to psychotropic
medication administered by the Visiting Nurses Associ-
ation, the respondent’s mental health issues best would
be addressed through psychotherapy. The department
referred her to a psychotherapist who provided her
with assistance in learning to control her emotions and
her behavior. The respondent, however, rejected some
of the services offered by the department, particularly
services related to domestic violence and parenting.
Although the respondent was apprised of the need to
avoid illegal substances, the respondent often refused
to submit to hair testing. The first time one of her hair
samples tested negative for illegal substances was in
October, 2014. The department also found suitable
housing for the respondent, in further support of one
of her specific steps.
The court found that the respondent made some prog-
ress pursuant to her own court-ordered specific steps.
The respondent, however, remains emotionally labile
and finds hostility to be a normal part of life. She strug-
gles to provide adequately for her own daily needs, and
she is unable to provide appropriate child care for her
children within a supervised setting. She puts her needs
above those of her children. The respondent’s compla-
cency during Green’s evaluation and during her visits
with the children, as well as the inappropriate com-
ments she makes to them, suggest that she has poor
empathy for her children. When parents lack empathy
for their children, the children feel unwanted or that
they have done something wrong, or both. The court
found that these factors indicate that the respondent
is unable to assume an appropriate role as the children’s
parent anytime in the near future. Green, in fact, testi-
fied that, even if the respondent were fully engaged in
services, it would take more than a year before reunifi-
cation might be a possibility. In view of the need for
stability and permanency for Q, U, and N, the court
found that it is in their best interest to terminate the
respondent’s parental rights.
For the forgoing reasons, the respondent’s first
claim fails.
II
The respondent’s second claim is that the trial court
abused its discretion and violated her right to due pro-
cess under the federal constitution by failing, sua
sponte, to hold a hearing to determine her competency
to stand trial where the record before the court contains
specific factual allegations that, if true, would raise a
reasonable doubt about her competency. We disagree.
This court recently decided a similar reviewability
claim in In re Glerisbeth C., 162 Conn. App. 273, 279,
130 A.3d 917 (2015), cert. denied, 320 Conn. 921,
A.3d (2016). As in the present case, the respondent
mother in In re Glerisbeth failed to preserve her similar
due process claim for appeal and sought a reversal of
the termination of parental rights judgments pursuant
to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d
823 (1989). The Golding standard is well known. An
appellant can prevail under Golding only if ‘‘all of the
following conditions are met: (1) the record is adequate
to review the alleged claim of error; (2) the claim is
of constitutional magnitude alleging the violation of a
fundamental right; (3) the alleged constitutional viola-
tion . . . exists and . . . deprived the [appellant] of a
fair trial; and (4) if subject to harmless error analysis,
the state has failed to demonstrate harmlessness of the
alleged constitutional violation beyond a reasonable
doubt.’’ (Emphasis in original; footnote omitted.) Id.,239–40; see also In re Yasiel R., 317 Conn. 773, 781,
120 A.3d 1188 (2015) (deleting word clearly from third
Golding prong). The first two prongs of Golding con-
cern whether the appellant’s claims are reviewable; the
second two prongs concern whether the appellant can
prevail on the claim raised. See State v. Ducharme, 134
Conn. App. 595, 605, 39 A.3d 1183, cert. denied, 305
Conn. 905, 44 A.3d 181 (2012).
The respondent’s claim satisfies the first and second
prongs of Golding, as the record is adequate for review
and her claim is of constitutional magnitude. A parent’s
right to raise his or her child is recognized as a basic
constitutional right. See Stanley v. Illinois, 405 U.S.
645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); Lehrer
v. Davis, 214 Conn. 233, 236, 571 A.2d 691 (1990). We,
therefore, have reviewed the record to determine
whether the alleged constitutional violation exists and
deprived the respondent of a fair trial. We conclude
that the respondent was not deprived of her constitu-
tional right to raise her children without due process
of law.
Our Supreme Court addressed the issue of a respon-
dent parent’s right to a competency hearing in In re
Alexander V., 223 Conn. 557, 560, 613 A.2d 780 (1992).
After balancing the interests of those parties pursuant
the test established in Mathews v. Eldridge, 424 U.S.
319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), the court
concluded that due process does not invariably require
a trial court to hold a hearing on the competency of a
respondent parent to stand trial in a termination of
parental rights proceeding. Id., 566. The court observed
that competency proceedings inherently delay a trial;
id., 565; and that ‘‘[c]hildren involved in termination
proceedings have a strong interest in the speedy resolu-
tion of such proceedings, for regardless of their out-
come, their final resolution promotes permanency in
the children’s family relationships and stability in their
lives. . . . The promotion of those objectives may be
put at risk, if not fatally compromised, by injecting
undue delay for any purpose into a termination proceed-
ing.’’ (Citation omitted.) In re Glerisbeth C., supra, 162
Conn. App. 280. Due to the ‘‘psychological effects of
prolonged termination proceedings on young children,
time is of the essence . . . .’’ (Internal quotation mark
omitted.) In re Alexander V., supra, 565.
After balancing the ‘‘legitimate interests of respon-
dent parents not to have their parental rights terminated
while they are incompetent to stand trial and the legiti-
mate interests of their children to have termination
proceedings brought to an expeditious conclusion, due
process requires that competency hearings be con-
ducted as to respondent parents in termination proceed-
ings in two . . . situations.’’ In re Glerisbeth C., supra,
162 Conn. App. 281. Due process requires a competency
hearing in termination of parental rights cases ‘‘only
when (1) the parent’s attorney requests such a hearing,
or (2) in the absence of such a request, the conduct
of the parent reasonably suggests to the court, in the
exercise of its discretion, the desirability of ordering
such a hearing sua sponte. In either case, the standard
for the court to employ is whether the record before
the court contains specific factual allegations that, if
true, would constitute substantial evidence of mental
impairment. . . . Evidence is substantial if it raises a
reasonable doubt about the [parent’s] competency
. . . .’’ (Citations omitted; internal quotation marks
omitted.) In re Alexander V., supra, 223 Conn. 566.
‘‘By definition, a mentally incompetent person is one
who is unable to understand the nature of the termina-
tion proceeding and unable to assist in the presentation
of his or her case.’’ Id., 563. If any evidence of record
has the potential to raise a doubt as to a respondent
parent’s ability to understand the proceedings against
him or her and to assist counsel in the presentation or
defense of the case, the court must exercise its discre-
tion to determine whether the evidence actually raises
a reasonable doubt as to the parent’s present compe-
tency to stand trial. In re Glerisbeth C., supra, 162 Conn.
App. 282. ‘‘[T]he standard for the court to employ is
whether the record before the court contains specific
factual allegations that, if true, would constitute sub-
stantial evidence of mental impairment.’’ (Internal quo-
tation marks omitted.) In re Alexander V., supra, 223
Conn. 566.
The focus of a competency inquiry is the parent’s
ability at the time of trial to assist counsel with a rational
and factual understanding of the termination proceed-
ings. The trial court, therefore, ‘‘is in a particularly
advantageous position to observe a [parent’s] conduct
. . . and has a unique opportunity to assess a [parent’s]
competency. A trial court’s opinion, therefore, of the
competency of a [parent] is highly significant.’’ (Internal
quotation marks omitted.) In re Kaleb H., 131 Conn.
App. 829 837, 29 A.3d 173 (2011), aff’d, 306 Conn. 22,
48 A.3d 631 (2012). ‘‘A competent [parent] . . . is able
to provide . . . counsel with the data necessary or rele-
vant to the structuring of [the] case . . . and informa-
tion to rebut evidence offered by the state . . . . The
test for competency is whether the respondent has suffi-
cient present ability to consult with [counsel] with a
reasonable degree of rational understanding and
whether [the parent] has a rational as well as factual
understanding of the proceedings . . . .’’ (Citations
omitted; internal quotation marks omitted.) In re Kaleb
H., 306 Conn. 22, 32, 48 A.3d 631 (2012).
On appeal, the respondent contends that the court
abused its discretion by failing to order sua sponte a
competency hearing because the record includes sub-
stantial evidence of her mental impairment. Specifi-
cally, the respondent points to the court-ordered
psychological and neuropsychological reports authored
by Green, indicating that she has an IQ of 60, a mild
intellectual development disorder, a mild neurocogni-
tive disorder, and acquired brain syndrome, which seri-
ously affects her capacity for attention and impulse
control. She contends that Green’s report is substantial
evidence that should have raised a reasonable doubt
in the mind of the court as to whether the respondent
had a sufficient ability to consult with and understand
counsel and whether she was capable of a rational or
factual understanding of the trial. The court, therefore,
should have ordered a competency hearing for her.
The respondent also relies on the representations of
her counsel at a hearing held on April 7, 2015.10 At
that time, counsel stated that the respondent had great
difficulty understanding even the revocation of the peti-
tioner’s custody of KW and objected to KW’s being
placed with his father. He represented that, according
to the respondent, she did not understand him and
that he did not explain things to her. Counsel for the
respondent requested, on the basis of Green’s neuropsy-
chological evaluation, that a guardian ad litem be
appointed for the respondent. Judge Lobo granted coun-
sel’s request, stating that a guardian ad litem may be
able to help the respondent understand the process.
The petitioner, on appeal, argues that the respondent
cannot satisfy the third Golding prong because she
failed to demonstrate that the court violated her consti-
tutional right to family integrity and that the record
does not support her claim that her mental impairment
called into question her ability to understand the termi-
nation proceedings or to assist her counsel. The peti-
tioner concedes that the respondent is mentally
impaired and has mental health issues, but contends
that the respondent has not explained how Green’s
diagnoses and her behavior were substantial evidence
of a mental impairment that prevented her from under-
standing the nature of the proceedings or to assist her
counsel. Moreover, the petitioner argues the record
does not support the respondent’s claim that she did
not understand the nature of the termination of parental
rights proceedings.
In support of her position, the petitioner has directed
us to the transcript of the April 7, 2015 hearing before
Judge Lobo. During the hearing, the respondent’s coun-
sel stated to the court that the respondent had difficulty
understanding the proceedings and that the respondent
wished to address the court directly. The court
explained to the respondent that it is better to let coun-
sel speak for her. The respondent stated: ‘‘He’s not
helping me at all.’’ She also stated that the last time
she had appeared before the court, the court informed
her that she ‘‘was doing good . . . and [to] bring you
a clean hair sample and I did.’’ Although the court
sought to interrupt the respondent, she continued stat-
ing: ‘‘I deserve my kids; there’s six. I hold six kids in
my stomach. They’re my kids. I hold them in my stom-
ach. . . . I brought those kids up myself. . . . And I’ll
do anything for them . . . . Really a lot. Every Satur-
day those kids cry to me . . . . I suffer every Saturday
. . . . I can’t hold it no more. I need my childrens back
home. . . . I need them home. It’s easy for you to say
‘Come back in June. Come back in August. Come back
in September.’ . . . I’m a good mother; I never abuse
my kids. They was doing good in school, better than
they doing now. They came out on the news, on channel
three.’’ The court stated in response, ‘‘I understand
your position.’’
The petitioner also has brought to our attention the
pretrial hearing held on April 21, 2015, at which the
court, Dannehy, J., presided. Judge Dannehy first
addressed the motion to withdraw that had been filed
by the respondent’s counsel. Counsel represented to
the court that he had filed the motion in response to
the respondent’s representations to Judge Lobo that
she wanted another attorney because she was dissatis-
fied with him. When asked by the court, the respondent
indicated that she was not going to retain her own
counsel. Judge Dannehy denied the motion to withdraw,
stating that there was not enough time for new counsel
to prepare before trial and ‘‘quite frankly, I have a feeling
you would probably be unhappy with their services,
as well.’’11
Judge Dannehy also commented on the appointment
of a guardian ad litem for the respondent, stating ‘‘there
is really no legal necessity to have a [guardian ad litem].
In my review of the psychological, the psychological
and neuropsych[ological reports], there is no indication
that [the respondent] is not competent.’’12 Counsel for
the respondent voiced no objection to the court’s find-
ing that the respondent was competent.13
The petitioner also directs us to the respondent’s
behavior at trial as evidence of her competence to stand
trial. On the first morning of the consolidated trial on
June 22, 2015, the respondent’s counsel stated to the
court that the respondent was withdrawing her objec-
tion to the permanent guardianship transfer of S and
KP to their paternal aunt and the revocation of KW’s
commitment in favor of his father. See footnote 5 of
this opinion. Counsel informed the court that the
respondent was withdrawing her objections pursuant
to conversations she had with him and her guardian
ad litem. The respondent’s counsel asked the court to
canvass the respondent. The court proceeded to can-
vass the respondent with respect to the revocation of
commitment regarding KW.14 Thereafter, the court can-
vassed the respondent in a similar fashion regarding
the permanent transfer guardianship with respect to S
and KP.15 The court asked all counsel present if anyone
knew of a reason not to accept the respondent’s con-
sent; no counsel, including the respondent’s counsel,
voiced such a reason.
The petitioner provided other examples of the
respondent’s behavior during the course of the trial,
which the petitioner claims support her position that the
respondent understood the proceedings. The examples
include the respondent’s interrupting testimony to clar-
ify where the Visiting Nurses Association met with her,
QK was arrested, not convicted, the number of times QK
tested positive for benzodiazepine, and the frequency of
her therapy sessions . In addition, as her counsel argued,
the respondent was employed as a home health aide,
who was responsible for providing direct, daily care
assistance to a blind woman and a wheelchair-bound
man. She also managed her own finances. Moreover,
the respondent interacted with numerous mental health
professionals and none of them ever questioned her
ability to understand the termination of parental
rights proceedings.
In her reply brief, in response to the evidence that
Judge Lobo canvassed her twice on June 22, 2013, and
that she appropriately interjected several times during
the termination trial, the respondent quotes from the
transcript of the hearing before Judge Lobo on April
7, 2015. Immediately prior to the following colloquy,
counsel representing S and KP had stated that the girls
supported the plan for the permanent transfer of their
guardianship to their paternal aunt. The respondent
spoke out.
‘‘[The Respondent]: Do you know they kik? Do you
know they on kik?
‘‘The Court: Ma’am, ma’am, ma’am. Ma’am. Ma’am.
‘‘[The Respondent]: Do you know they on kik?
‘‘The Court: Ma’am.
‘‘[The Respondent]: Talking to other people? Do you
know that they talking to other guys? . . . Do you
know they on kik? . . . Can you answer me that? . . .
They on kik; talking to other mens. Can you find out
about that?’’16 No one at the time the respondent inter-
rupted the proceedings, not the court, her counsel, or
counsel representing the S and KP, asked the respon-
dent what she meant by ‘‘do you know they on kik.’’
On appeal, the respondent argues that her statements
on April 7, 2015, indicate that she did not fully under-
stand the proceedings.
Our task is to review the record to determine whether
Judge Lobo abused his discretion by not sua sponte
ordering a competency hearing for the respondent. ‘‘In
determining whether a trial court has abused its discre-
tion, an appellate court must make every reasonable
presumption in favor of upholding the trial court’s rul-
ing, and only upset it for manifest abuse of discretion.
. . . Accordingly, review of [discretionary] rulings is
limited to questions of whether the trial court correctly
applied the law and reasonably could have reached the
conclusion that it did. . . . In determining whether the
trial court [has] abused its discretion, this court must
make every reasonable presumption in favor of [the
correctness of] its action. . . . This standard of review
applies no less to a discretionary determination not to
act sua sponte when to do so is required by law in
particular circumstances than to a discretionary ruling
expressly granting or denying a request by counsel that
the court so act. Presuming, as we must in the absence
of clear evidence to the contrary, that the court was
well aware of its legal duty to conduct a hearing to
determine the respondent’s competency to stand trial
if the evidence before it raised a reasonable doubt as
to her present ability to understand the proceedings
against her and to assist counsel in the presentation of
her case . . . we treat its failure to order such a hearing
as the result of its discretionary determination that no
such action was called for in the circumstances before
it.’’ (Citations omitted; internal quotation marks omit-
ted.) In re Glerisbeth C., supra, 283–84.
The essence of the respondent’s claim on appeal is
that Green’s diagnosis of her mental impairments con-
stitutes substantial evidence of her lack of competency
for trial. The respondent’s claim fails because she has
conflated her mental health history with her cognitive
ability to understand the termination proceedings and
evidence in the record demonstrates that the respon-
dent comprehended the termination of parental rights
proceedings and was able to assist her counsel.
Although the respondent should not have spoken out
during the testimony of others, her statements demon-
strate that she understood the examinations being con-
ducted and the testimony being given, as her statements
were germane to the topics of inquiry.
The respondent’s outburst before Judge Lobo on
April 7, 2015, demonstrates that she was aware of her
older daughters’ social media activities and she ques-
tioned whether the department was aware of them. She
made an impassioned plea in response to the court’s
prior statements that she was doing well and she pro-
vided a clean hair sample. She also explained her need
for her children to be with her. The court responded
that it understood her feelings, a clear indication that
the court did not find her unable to understand the
termination proceedings.17
We conclude that the respondent’s behavior indicates
that she understood the consequences of the termina-
tion of parental rights proceedings, if not why her chil-
dren were being removed. In that regard, we share the
sentiments expressed by this court in In re Glerisbeth
C. The respondent mother’s claim in that case that she
did not understand the petitioner’s actions against her
evidenced ‘‘not a lack of understanding of the nature
of the termination proceedings, but a fundamental dis-
agreement with the [petitioner] as to her ability to be
an effective parent for her children.’’ In re Glerisbeth
C., supra, 162 Conn. App. 293. Evidence that the respon-
dent in the present case disagreed with the petitioner’s
actions was most evident on April 7, 2015, when she
stated to Judge Lobo that her counsel was not helping
her, that the court previously had informed her that
she was doing well, and that she provided a clean hair
sample. In the respondent’s mind, she was doing what
was asked of her, but the termination proceedings were
proceeding apace. At that time, the respondent made
abundantly clear that she knew her children were to
be removed from her, but that she disagreed. She
pleaded that she was a good mother, that she suffered
when she was separated from her children, and that
she needed them to be at home with her. This portion
of the record in particular contradicts any argument that
the respondent’s conduct before Judge Lobo reasonably
suggested that he should order a competency evalua-
tion. See In re Kaleb H., supra, 306 Conn. 32; In re
Alexander V., supra, 223 Conn. 566.
On the basis of our review of the record, the briefs
of the parties and their oral arguments, we conclude
that the court did not abuse its discretion or violate the
respondent’s right to due process by not ordering, sua
sponte, a competency evaluation of the respondent.
The respondent’s claim, therefore, fails under the third
prong of Golding.
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.
** April 8, 2016, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
The parental rights of the respondent father, QK, also were terminated,
but he is not a party to this appeal. We, therefore, refer to OV as the
respondent.
2
The court found that the respondent’s criminal history spans the years
1998 through August, 2012, and includes, but is not limited to, charges of
first and second degree assault, possession of narcotics, carrying a weapon,
assault on personnel, second degree larceny, and failure to appear.
3
SP is the father of S and KP; BW is the father of KW.
4
The specific steps included, among other things, engaging in treatment
to learn safe and nurturing parenting, gaining insight on the impact of
her substance abuse and mental health issues on the children, addressing
substance abuse, mental health and domestic violence issues, abstaining
from illegal drugs, maintaining adequate housing and legal income, taking
all medications as prescribed, avoiding the criminal justice system, and
learning to take care of the children’s physical, educational, medical, and
emotional needs.
5
Also before the court was a permanency plan that transferred custody
of S and KP to their paternal aunt and revoked the commitment of KW,
who was in the custody of his father. The respondent objected to this plan
as of April 21, 2015.
6
General Statutes § 17a-112 (j) provides in relevant part that the court
‘‘may grant a petition [to terminate 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 reunify the child with the
parent . . . (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 . . . 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 . . . .’’
7
The analysis of a hair follicle may reveal the presence of drugs consumed
within the past three months.
8
The evaluations were conducted in November and December, 2014.
Green’s reports are dated February 17 and March 10, 2015.
9
The respondent specifically faults the petitioner for not implementing
Green’s recommendations with respect to the manner in which services
were provided to her and for failing to take advantage of some of the
programs and services Green suggested. Green’s report was distributed to
the parties three or four months prior to trial in June, 2015, and well after
the adjudication date.
10
The hearing before Judge Lobo concerned the permanency plans for
each of the respondent’s six children. The respondent had filed objections
to each of the plans. The purpose of the hearing was to consolidate the
matters for trial.
11
Judge Dannehy further stated to the respondent: Your counsel ‘‘is a
very good attorney. He is very qualified. He is very skilled. He is very
experienced. He might be the bearer of bad news to you. You may not like
what he is telling you, but it is not a question of his competence or his
willingness to work on your behalf. It’s just unfortunately that he has to
tell you what [the department] wants to do. And you’re unhappy with the
message that you are getting from him and not his ability to represent you.’’
12
Nonetheless, Judge Dannehy continued the guardian ad litem’s appoint-
ment for the respondent.
13
The petitioner also notes that in his final argument, counsel for the
respondent emphasized evidence of the respondent’s competence, particu-
larly that she had been employed for more than one year and that she should
14
The court canvassed the respondent as follows.
‘‘The Court: I’m going to initially ask you questions regarding [KW’s]
revocation. All right? For that piece first. And then I’ll ask you questions
regarding the transfer of guardianship piece. All right? And again, if you
have any questions regarding my question, you have your attorney, you have
your guardian ad litem, as well as myself to try to clarify any of those issues
for you. Okay? Does that make sense?
‘‘[The Respondent]: Yes.
‘‘The Court: All right. As to the revocation today, are you under the
influence of any alcohol, drugs, or medication that would negatively impact
your ability to understand what’s happening here today?
‘‘[The Respondent]: Yes, yes. I understand everything you say.
‘‘The Court: Well, but do you understand?
‘‘[The Respondent]: Yes.
‘‘The Court: Okay. So none of the medications or anything are negatively
impacting you?
‘‘[The Respondent]: No, no.
‘‘The Court: Okay. As to the revocation, the motion to revoke commitment,
did your attorney . . . or your guardian ad litem, discuss with you, what
the state would need to prove at trial as far as effectuating that revocation,
as well as all the evidence the state claims it has for that revocation?
‘‘[The Respondent]: Yes.
‘‘The Court: Do you understand by agreeing to the revocation, you are
giving up certain rights? You are giving up your right to remain silent. You’re
giving up your right to a trial before a judge with the assistance of your
attorney as to the revocation. You’re giving up your right to continue to
deny the attempts to revoke commitment and have the petitioner prove that
revocation by a fair preponderance of the evidence, a little bit more than
not. You are giving up your right to cross-examine the state’s witnesses, to
call your own witnesses, to testify in your own behalf, if you so chose,
although no one could force you to testify. You are giving up your right to
continue to present a defense to the motion to revoke. Do you understand
you are giving up those rights?
‘‘[The Respondent]: Yes.
‘‘The Court: Has anyone threatened you or promised you anything, other
than what we’ve talked about in court today, in order to get you to agree
to that revocation?
‘‘[The Respondent]: No.
‘‘The Court: Is there anything that I asked you regarding the revocation
that you do not understand?
‘‘[The Respondent]: No.
‘‘The Court: Does any counsel know of any reason why or any reason
why the court should canvass further?
***
‘‘The Court: No. You will still—there will still be a trial as to the termination
petition regarding [Q, U, and N]; do you understand that? Yes?
‘‘[The Respondent]: Yeah.
‘‘The Court: An by agreeing on the other three children as to the transfer
of guardianship and the revocation, that agreement that you are making in
no way negatively impacts your position as to the termination petitions; do
you . . . that?
‘‘[The Respondent]: Yes.
‘‘[The Respondent’s Counsel]: Your Honor, just to clarify further, my client
in our conversation with me, with the [guardian ad litem] present, did
understand that the termination of parental rights trial will go forward.
‘‘The Court: Yes.
‘‘[The Respondent’s Counsel]: That she understands that now we can just
concentrate on the three [K] children. She understands that. That’s just
another way of paraphrasing that she does understand.
‘‘The Court: Thank you.’’
15
After it canvassed the respondent, the court approved the permanency
plans for KW and for S and KP.
16
The transcript of the respondent’s statements provides: ‘‘Do you know
they kick? (sic) Do you know they on kick?’’ The use of the term sic indicates
that the court monitor was not confident about the spelling of the word.
Given the context of the respondent’s remarks, she very possibly was refer-
ring to Kik Messenger. ‘‘Kik Messenger, also called Kik, is an instant messen-
ger application (app) for mobile devices from Kik Interactive, available free
of charge on iOS, Android, and Windows Phone operating systems. . . .
Kik is known for its features preserving users’ anonymity, such as allowing
users to register without providing a telephone number, and preventing
users from being located on the service . . . . Kik Messenger has drawn
controversy due to its reported involvement in a number of incidents of
child exploitation. The app has been criticized as unsafe for minors due to
its anonymity features and allegedly weak parental control mechanisms.’’
(Footnotes omitted.) Kik Messenger, Wikipedia, the free encyclopedia, avail-
able at http://en.wikipedia.org/wiki/Kik_Messenger (last visited April 8,
2016).
17
We also note that during those proceedings, at no time did anyone
providing services to the respondent suggest to the court that she was
not competent.