ROGERS, C.J.
The primary issue in this appeal is whether the trial court properly relied on certain conduct of the respondent father, Matthew M. (respondent), in granting the petition to terminate his parental rights. The respondent appeals from the judgment of the Appellate Court affirming the trial court's decision to terminate his parental rights as to his minor child, Shane M., and to appoint the petitioner, the Commissioner of Children and Families (commissioner), as statutory parent. In re Shane M., 148 Conn.App. 308, 330, 84 A.3d 1265 (2014). The respondent claims that
The following facts, which the trial court found by clear and convincing evidence, and procedural history are relevant to the resolution of this case. The respondent is the biological father of Shane, who was one day shy of his third birthday when the respondent's parental rights were terminated on April 30, 2013. Three days after Shane was born, the Department of Children and Families (department) responded to a report that Shane's mother
On August 23, 2010, the commissioner filed a petition of neglect based, in part, on the respondent's history of substance abuse, the history of violence between the respondent and Shane's mother and their recent cohabitation despite four protective orders against their doing so, the respondent's unaddressed mental health issues, and the fact that Shane was only three months old at the time and was incapable of protecting himself against violence. At that time, the department referred the respondent to Radiance Innovative Services (Radiance) for parenting education and to the Alcohol and Drug Rehabilitation Center for substance abuse evaluation and counseling.
The respondent participated in a clinical assessment at Radiance on September 26, 2010. After that assessment, he was diagnosed with "adjustment disorder with mixed anxiety and depressed mood, [attention deficit hyperactivity disorder] by history and cannabis abuse by history." Radiance staff recommended that the respondent start long-term therapy to address symptoms of depression, anxiety,
Two days later, the respondent went to the residence of Shane's mother and tried to break down the door with a chair. As a result of that incident, he was arrested for breach of the peace and trespassing, and a full protective order was issued against him.
On November 16, 2010, due to the ongoing criminal issues and arrests and domestic violence regarding the respondent and Shane's mother, the commissioner invoked a ninety-six hour hold on behalf of Shane. Three days later, the commissioner filed a motion for order of temporary custody (order), which was granted and subsequently sustained in a preliminary hearing on November 24, 2010. At that hearing, the respondent received and agreed to court-ordered specific steps to facilitate reunification with Shane. The steps required him, inter alia, to participate in parenting counseling at Radiance to learn safe and nurturing parenting, and individual counseling at North Central Counseling to address issues of depression and anger management; to submit to random drug screens with the time and method of testing determined by the department; to refrain from using illegal drugs or abusing alcohol or medicine; to cooperate with court-ordered evaluations or testing; to
During the respondent's initial Radiance sessions, he was considered "very focused and actively involved in the program," and he completed an in-home father to father program on December 28, 2010. He was then referred to a nonviolence alliance program in January, 2011, to address issues of domestic violence. At that program, the respondent reported that he "did not feel that he was in need of domestic violence services and stated that he was the victim in the relationship with [Shane's] mother." In February, 2011, the respondent was referred to services at Community Health Resources for "psychiatric treatment and individual counseling." The report from the respondent's psychiatric evaluation indicated that the respondent "had no past history of violence and. . . tried marijuana occasionally and denie[d] being addicted." The trial court noted, however, that the information contained in the report "appear[ed] to be self-reported by [the respondent]." Notably, the report "[did] not indicate that any independent sources were contacted nor that any medical records were reviewed by the evaluator." The respondent subsequently stated that he "did not want to participate in services" and that he attended "only . . . to appease [the department]. . . ."
In March, 2011, the respondent pleaded nolo contendere to the commissioner's neglect petition, and the trial court reiterated all but one of the specific steps the respondent previously had been ordered to follow. By this time, Shane had been in the commissioner's custody for five months.
The respondent's Radiance sessions resumed in April, 2011, but he missed several; when he did attend, he continued to
In May, 2011, the respondent was arrested for possession of a controlled substance and for driving unreasonably fast. Following the arrest, which the respondent did not report to the department, he tested positive for marijuana on August 18, September 2, September 9 and September 16, 2011.
Pursuant to General Statutes § 46b-129(k)(1)
In November, 2011, the respondent was again referred to participate in a parenting program. He continued to engage in supervised visits with Shane and did a "good job parenting" but was "sometimes nervous. . . ." His supervising social worker noted that the respondent could benefit from additional parenting education, because he tended to become hyperactive and because he was limited by his attention deficit hyperactivity disorder. A parenting mentor was also recommended for the respondent as "he appeared to be overwhelmed with handling the needs of an active toddler and a baby
After the respondent had completed the domestic violence group sessions and while he continued to attend Radiance sessions, he was arrested for disorderly conduct on
On November 23, 2011, the department petitioned the court to terminate the respondent's parental rights. At this point, Shane had been in the commissioner's custody for thirteen months. Yolanda Leon, a department social worker, submitted a social study in support of the petition, opining that, "[s]ince the time of [Shane's] removal, [the respondent] has not adequately addressed his mental health needs [or] substance abuse, and has only recently begun to address domestic violence." She noted that the respondent had not maintained contact with the department or informed it of his living situation, but that he was employed full time. In addition, Leon submitted that the respondent "continues to deny that he smoked marijuana and . . . does not want to do a new substance abuse evaluation and hair test, however [the respondent] stated he would cooperate."
In February, 2012, the respondent again tested positive for marijuana. Over the next month, the respondent showed "increased anxiety" and "was less focused during his individual counseling" at Radiance. The next three urine drug screens that the respondent took for marijuana were negative.
After the respondent was discharged from the Alcohol and Drug Rehabilitation Center for failing to attend three scheduled appointments, he asked to be referred to another program for substance abuse and mental health. He arrived late to his first evaluation, however, and could not be evaluated. He then requested to be referred to an agency closer to his home and began a program at Community Health Resources on June 13, 2012. In the same month, the respondent tested positive for marijuana in a hair follicle drug screen. Thereafter, he was recommended for group therapy but "refused to participate." At this point, Shane had been in the commissioner's custody for seventeen months.
Derek A. Franklin, a licensed clinical psychologist, conducted a court-ordered evaluation of the respondent in September, 2012. He diagnosed the respondent with attention deficit hyperactivity disorder, generalized anxiety disorder and cannabis abuse and antisocial traits. He posited that the respondent had a high potential for relapse, continued use or craving for cannabis that needed to be monitored and addressed. Clinical testing indicated that the respondent presented elevations in the domains of "[attention deficit hyperactivity disorder], anxiety, paranoia, substance abuse, and antisocial [traits] and aggression." Franklin described the respondent as "future oriented and optimistic," but he also saw "sufficient evidence of mood dysregulation exacerbated by anxiety." In particular, clinical testing for anxiety suggested "prominent worry. . . [which] may be of such magnitude that concentration and [attention] are compromised." Franklin noted that "[i]ndividuals with similar profiles may typically misuse substances to obtain both emotional control and management of anxiety."
Franklin determined that the respondent's "anxiety, mood dysregulation and [attention deficit hyperactivity disorder] marginally impact[ed] his day-to-day functioning," but that these conditions "are likely to be exacerbated . . . under the weight of emotional and psychological distress." Franklin urged that the respondent receive treatment for these concerns, as well as for his substance abuse. He offered further recommendations, concluding that "[i]t is imperative that [the respondent] be referred for a psychiatric consultation . . . to identify medication that could be useful in ameliorating or managing symptoms of mood dysregulation, anxiety and [attention deficit hyperactivity disorder]. Without medication, [the respondent] is likely to continue to have problems." Franklin further recommended that the respondent participate in additional domestic violence classes to rectify his "inability to manage anger and hostility under the weight of emotional distress. . . ." Although the respondent claimed that he had not used marijuana in more than one year despite his positive drug screens three and six months prior, Franklin "strongly advise[d]" that the respondent participate in more substance abuse groups given that he had previously refused to participate in substance abuse groups and because "clinical data suggests that at the very minimum he continues to crave cannabis and, therefore, is subject to relapse." On the basis of these unaddressed concerns, Franklin ultimately recommended termination of the respondent's parental rights.
The respondent completed counseling at Community Health Resources on December 27, 2012, and no further treatment was recommended. Thereafter, the respondent's urine screens were negative. He refused, however, to engage in hair follicle testing after December, 2012.
A trial was held on the termination of parental rights on October 2, 2012, January 4, 2013, and March 18, 2013. In the adjudication phase,
In the dispositional phase; see footnote 12 of this opinion; the trial court considered Shane's age and feelings and emotional ties he had with his foster parents, the efforts the respondent had made to adjust his own conditions to facilitate Shane's return to his home, and the fact that no other person's unreasonable conduct had prevented the respondent from maintaining a relationship with Shane, in determining that termination of the respondent's parental rights was in Shane's best interest. On April 30, 2013, the trial court terminated the respondent's parental rights and appointed the commissioner as Shane's statutory parent.
The respondent appealed to the Appellate Court from the trial court's judgment, arguing that the trial court "improperly (1) terminated his parental rights pursuant to. . . § 17a-112(j) based on an overly broad interpretation of that statute; (2) terminated his parental rights based on insufficient evidence; (3) drew an adverse inference against the respondent without prior notice; and (4) terminated his parental rights because § 17a-112(j)(3)(B) is unconstitutionally vague as applied to him." In re Shane M., supra, 148 Conn.App. at 310, 84 A.3d 1265. The Appellate Court affirmed the judgment of the trial court. Id., at 330, 84 A.3d 1265. We granted the respondent's petition for certification to appeal limited to the following issue: "Did the Appellate Court properly conclude that the trial court correctly determined that the respondent `failed to rehabilitate' and thus correctly terminated his parental rights?" In re Shane M., 311 Conn. 930, 86 A.3d 1056 (2014).
On appeal, the respondent claims that the Appellate Court improperly affirmed the termination of his parental rights for failure to rehabilitate under § 17a-112(j)(3)(B), because the trial court relied (1) on conduct of the respondent not encompassed by the court-ordered specific steps, and (2) that in the absence of such conduct, there was insufficient evidence to find that he had failed to rehabilitate. The respondent further claims that the Appellate Court improperly affirmed the trial court's finding that he continued to use cannabis on the basis of his refusal to submit to a drug test, and that the trial court's decision to draw an adverse inference from that refusal was fundamentally unfair.
We first set forth the applicable standard of review and general principles.
When a child is taken into the commissioner's custody, a trial court must issue specific steps to a parent as to what should be done to facilitate reunification and prevent termination of parental rights. In re Elvin G., 310 Conn. 485, 507-508, 78 A.3d 797 (2013); see also General Statutes § 46b-129(b), (c)(6) and (j)(3).
Finally, we take this opportunity to clarify our standard of review of a trial court's finding that a parent has failed to achieve sufficient rehabilitation.
Turning to the case before us, the respondent contends that three of the findings
The court properly considered that the respondent rejected the assistance of a parental aide during visitation with Shane, because such a finding is clearly covered by the specific steps requiring the respondent to (1) "[t]ake part in counseling and make progress toward the identified treatment goals," (2) learn "safe [and] nurturing parenting," and (3) "[c]ooperate with service providers recommended for parenting . . . counseling." While the respondent did participate in weekly visitations, parenting classes, and a parenting education course, he failed to comply fully with these identified specific steps when he declined a parenting mentor service to help him learn how to balance the needs of Shane and his new baby.
The trial court also properly considered the respondent's repeated statements that he attended court-ordered rehabilitation programs only to appease the department. The specific steps required the respondent to (1) cooperate with service providers and make progress toward improving his parenting, while learning appropriate child development, and (2) address his issues of depression and anger management. The court-ordered programs would serve little purpose if a participant is merely going through the motions to appease the department, rather than working sincerely toward actual improvement. Indeed, the respondent's claim that his "personal motivating factors for [his] participation in programs [have] absolutely no role to play under . . . § 17a-112(j)(3)(B)" is not only unsupported by any legal citation, but is also stunningly contrary to common sense. We agree, therefore, with the Appellate Court's determination that the respondent's "failure to acknowledge the underlying personal issues that form the basis for the department's concerns indicates a failure to achieve a sufficient degree of personal rehabilitation. See In re Kamora W., 132 Conn.App. 179, 190, 31 A.3d 398 (2011) (respondent refused to acknowledge drug or alcohol problem); In re Jocquyce C., 124 Conn.App. 619, 626-27, 5 A.3d 575 (2010) (respondent failed to acknowledge habitual involvement with domestic violence); In re Christopher B., 117 Conn.App. 773, 784, 980 A.2d 961 (2009) (respondent blamed others for problems); In re Jermaine S., 86 Conn.App. 819, 834, 863 A.2d 720 (respondent's inability to admit she had substance abuse problem `thwarted her ability to achieve rehabilitation'), cert. denied, 273 Conn. 938, 875 A.2d 43 (2005); In re Sheila J., 62 Conn.App. 470, 481, 771 A.2d 244 (2001) (respondent failed to recognize her need for recommended counseling)." In re Shane M., supra, 148 Conn.App. at 322, 84 A.3d 1265.
Finally, the respondent's refusal to undergo a medical assessment by a psychiatrist for controlling his diagnosed attention deficit hyperactivity disorder and other
For all the foregoing reasons, we conclude that the respondent had ample notice of all of the steps with which he was expected to comply, and that the conduct of the respondent that the court considered in terminating his parental rights fell within the scope of the court-ordered specific steps that were provided to the respondent on two separate occasions.
We next consider whether there was sufficient evidence for the trial court to find by clear and convincing evidence, that the respondent failed to achieve sufficient rehabilitation that "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. . . ." General Statutes § 17a-112(j)(3)(B). Our careful review of the record and lengthy recitation of the factual findings made by the trial court reveals that the extensive evidence credited by the court strongly supports its determination that the respondent had failed to achieve sufficient rehabilitation to be able to parent Shane within
Although the respondent encourages us to focus on the positive aspects of his behavior and to ignore the negatives, we will not scrutinize the record to look for reasons supporting a different conclusion than that reached by the trial court. See In re Melody L., supra, 290 Conn. at 148, 962 A.2d 81. We simply cannot find fault with the trial court's reasoning that, "[a]lthough [the respondent] participated in most of the services, albeit with varying degrees of motivation, [his] failure to adequately address [his] substance abuse, mental health and domestic violence issues remain significantly deficient." Thus, we conclude that the trial court reasonably determined, based on its factual findings and the reasonable inferences drawn therefrom, that the respondent failed to achieve sufficient rehabilitation that would encourage the belief that, within a reasonable time, he could assume a responsible position in Shane's life.
Finally, the respondent claims that the trial court improperly inferred that he continued to engage in substance abuse on the basis of his refusal to submit to a hair follicle drug test, without informing him first that such an inference could occur. He analogizes the adverse inference drawn from his refusal to submit to a court-ordered drug test to one drawn from a parent's failure to testify at termination proceedings and contends that the trial court acted in violation of Practice Book §§ 32a-1(h) and 35a-7A,
As a general matter, the trial court may, "[i]n the absence of an express statutory provision to the contrary . . . draw all fair and reasonable inferences from the facts and circumstances [that] it finds established by the evidence. . . ." (Citations
Here, the respondent was issued, and agreed to, specific steps requiring him to refrain from drug use and to submit to drug testing as required by the department. For that reason alone, his claim of unfair surprise from the negative inference resulting from his refusal to take a drug test is meritless. As to the reasonableness of the trial court's inference, after Shane was taken into the commissioner's custody, the respondent was arrested on cannabis charges, and he tested positive for marijuana on five separate occasions. As a result of the positive screens, the respondent was referred for further substance abuse and mental health assessments; however, he did not attend his scheduled appointments. Although some of the respondent's subsequent urine tests were negative, Franklin testified that these tests "were woefully inadequate . . . because people can fake a urine test. Anyone with any experience with working on the Internet can find ways that you can dilute the solution or drink things to dilute the solution, which is typically why you want urinalysis and hair analysis." Accordingly, the trial court was cognizant of the potential for the respondent to either relapse into substance abuse or to manipulate his urine tests. Given the foregoing, the respondent certainly had notice that refusing to submit to drug testing could cause the trial court to conclude that he was not drug free and, therefore, increase the chance that his parental rights would be terminated. In short, the trial court reasonably inferred, based on the respondent's proven past drug use and his refusal to submit to testing, as his specific steps required, that he had continued to use marijuana.
We also reject the respondent's contention that an adverse inference drawn from the failure to testify and an unfavorable inference drawn from the refusal to submit to court-ordered drug screens are so analogous that the same procedural safeguards should apply. To the extent this claim requires us to interpret the scope of a rule of practice, our review is plenary. State v. Sheriff, 301 Conn. 617, 622, 21 A.3d 808 (2011).
Both Practice Book § 32a-1(h) and General Statutes § 46b-137(d), by their explicit terms, apply only to "confession[s], admission[s] or statement[s]" that are "written or oral," and the respondent does not explain how a refusal to take a drug test falls within this language. See, e.g., State v. Campfield, 44 Conn.App. 6,
The judgment of the Appellate Court is affirmed.
In this opinion PALMER, EVELEIGH, McDONALD and ESPINOSA, Js., concurred.
ZARELLA, J., with whom ROBINSON, J., joins, dissenting.
I am deeply troubled by the majority's decision to affirm the judgment of the Appellate Court, which upheld the trial court's termination of the parental rights of the respondent father, Matthew M. (father). The trial court found, by clear and convincing evidence, that the Department of Children and Families (department) had proven that "the level of rehabilitation achieved by the parents falls far short of that which would reasonably encourage the belief that at some future date either parent could assume a safe, reliable and responsible position in [Shane M.'s] life given his age and needs."
I first note that, under the newly clarified standard of review, we review the trial court's subordinate factual findings for clear error. Under this standard, "[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 a trial court's conclusion was factually supported and legally correct." (Internal quotation marks omitted.) In re Jorden R., 293 Conn. 539, 558-59, 979 A.2d 469 (2009). We review the trial court's ultimate conclusion as to whether a parent has failed to rehabilitate, however, to determine "whether the trial court could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify its
Turning to Franklin's specific findings, I begin with several general comments regarding the information on which Franklin relied. First, Franklin interviewed the father directly for only a little more than two hours.
Second, Franklin testified that the results of several of the father's personality tests
Third, the collateral data sources the department provided to Franklin consisted of eleven documents prepared by three different department social workers who supervised the father's case from the summer of 2010 to September, 2012, but who never worked directly with the father as therapists or counselors. In addition, four of the eleven documents were prepared before the specific steps were ordered on November 19, 2010,
Fourth, although the collateral data sources contained references to most of the father's substance abuse and mental health counselors, including Nancy Burgos, Charles Frazier, Lisa Sargis, and Rudolph Thomas, Franklin testified that he failed to speak with any of these counselors in order to learn firsthand about the father's progress and condition. In explaining this omission, Franklin stated that he was allowed to speak only to persons authorized by the department and that, if the names of the father's service providers were not included on the list of authorized persons, he made no effort to contact them.
In sum, I believe the foregoing limitations in Franklin's report resulted in findings by the trial court regarding the level of rehabilitation achieved by the father that were not supported by clear and convincing evidence, and, therefore, "the trial court could [not] have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify its [finding]" that the father had failed to rehabilitate. In re Soncheray H., supra, 42 Conn.App. at 668, 680 A.2d 1363. In the text that follows, I describe each of the concerns that, according to Franklin and the trial court, continued to persist at the time of Franklin's evaluation and that served as the basis for the termination of the father's parental rights. I then describe the conflicting testimony of the service providers, who worked with the father over a period of months and years, that casts doubt on the trial court's conclusion that the father had failed to rehabilitate.
The trial court found, on the basis of Franklin's report and testimony, that the father had been diagnosed with cannabis abuse and that the testing data suggested there was a "high potential for relapse" and for "continued use or cravings, which [would] need to be monitored and addressed." The court referred to test results obtained by Franklin and described in his report showing an elevation in the clinical domain of substance abuse and noted Franklin's opinion that testing profiles indicating evidence of "mood dysregulation exacerbated by anxiety" suggested that the father was likely to continue abusing
The trial court's findings regarding the father's substance abuse cravings and relapse potential, however, were clearly erroneous insofar as they applied to the father in September, 2012, because they were based on Franklin's description of the father's diagnosis of substance abuse in 2010 and 2011, and the general profile evidence in Franklin's report, which, as previously discussed, described the propensities of persons with test results similar to those of the father rather than the father's condition at the time of the termination proceeding. The finding in Franklin's report that the father refused to participate in recommended substance abuse counseling, which the trial court also relied on in concluding that he required additional treatment, was likewise clearly erroneous because it contradicted the testimony of the father's substance abuse counselor.
Erica Cyr, a psychotherapist at Community Health Resources who evaluated the father for substance abuse on June 13, 2012, and was a witness for the department, testified that, although the father initially did not want to participate in recommended group therapy for substance abuse, he changed his mind within one week and attended thereafter on a regular basis. She ultimately counseled the father for twelve weeks, from the end of August to December, 2012, in order to address his mental health and substance abuse issues, and testified that three random urine screens for substance abuse were negative during that time, although she was aware of one positive hair test. She described the father as an active participant in the group who had a good understanding of substance abuse and that, as of January, 2013, she believed he was in remission and that no further treatment was necessary. The department's own witness thus indicated that, in late September, 2012, when Franklin was conducting his evaluation, the father was participating successfully in group therapy for substance abuse.
Franklin, however, did not have this information when he prepared his report because he failed to follow up on the calls he said he had made to the authorized persons on the department's list. Franklin specifically testified he did not speak with Cyr, did not recall if he had attempted to contact her, and was not aware of her opinion regarding the father's drug dependency issues when he conducted his evaluation. He nonetheless admitted it was "critical" and "absolutely important" to know how the father was doing in a drug treatment program in order to conduct a proper substance abuse evaluation. Accordingly, the trial court's finding, based on Franklin's report, that the father required additional substance abuse treatment because he was in danger of a potential relapse was clearly erroneous because it was not supported by clear and convincing evidence.
The trial court also relied on Franklin's findings regarding the father's anger management
"With regard to [the] father's mental illness . . . Franklin opined that [the] father's anxiety, mood dysregulations, and ADHD marginally impact his day-to-day functioning but that these are likely to be exacerbated under the weight of emotional and psychological distress. He recommended treatment for these issues. . . ." (Internal quotation marks omitted.)
Franklin's negative evaluation appears to be based entirely on the father's test results and thus does not describe the personality and behavioral characteristics that the father actually exhibited in September, 2012, but, rather, the propensities of persons with similar test results. In fact, testimony from the father's mental health counselors, who worked with him over a period of almost three years, indicates that, in September, 2012, and thereafter, he either did not display most of the characteristics described in Franklin's profile or gradually overcame them.
Burgos, a clinical social worker at Radiance Innovative Services (Radiance) who conducted mental health assessments and made recommendations regarding treatment, evaluated the father in September, 2010,
Sargis, a clinical social worker at Radiance who was the father's counselor from May, 2011, through January, 2012, worked with him on problem solving skills, coping skills and relaxation techniques to reduce his level of anxiety. She testified that, after she got to know him, she concluded he was doing much better than she originally had believed because he was juggling two different jobs as well as coming to the counseling visits and attending parenting and domestic violence classes; in her view, this busy schedule would cause anxiety in any ordinary person. She acknowledged a concern regarding his impulse control upon learning of an incident at his grandparents' home in November, 2011, during which he had poured gasoline on their kitchen floor, and thus recommended that he continue to work on anger management and coping skills when she left for another position in January, 2012. She nonetheless concluded that the father was functioning in most areas of his life, had listened and responded positively to her suggestions regarding anger management and coping skills, felt remorse about the incident at his grandparents' home, and, as time went by, his anxiety seemed to subside. She also testified that he did not miss his appointments, would arrive on time, and was cooperative and open-minded.
Thomas, a social worker at Radiance who had been counseling the father since January, 2012, when Sargis left, and was continuing in that capacity when he testified at the termination hearing in January, 2013, also worked with the father in the parenting program for thirteen weeks. He testified that the father consistently attended and fully participated in the program and that he was nurturing and able to share his ideas about how to parent a child. Thomas stated that the department's goals for the father were to learn how to parent a young child, deal with substance abuse, obtain gainful employment, and resolve his anxiety issues. With respect to these goals, Thomas described the father as consistently employed and as having no hyperactivity issues. Thomas also testified that the father was doing well managing his anxiety, which no longer was a concern. He explained that the father could be stubborn and opinionated at times, but that was part of his personality and not a mark against him, especially because he could listen to and take advice. Thomas described the calming techniques that he had discussed with the father and then provided an example of how the father used them effectively, at Thomas' suggestion, in the course of obtaining a change in position at his workplace in order to avoid contact with a manager who was "getting on his nerves."
Finally, Frazier, a clinical social worker and the president of Radiance who had worked with the father as a facilitator in a domestic violence group in 2011 through 2012, described him as anxious by nature because he was a person who wanted to do things quickly and to do the right thing, but that he did not see this quality as a negative. Frazier testified that the father always was cooperative and engaged during the twenty-four week program, which he completed in 2012, and that he voluntarily shared his perspective. He also was, for the most part, on time and attended most classes, although there were occasional conflicts with his two jobs. Frazier further testified that he always had believed the father's domestic violence risk was low and that he had changed over the course of the program from denying that he was an offender, at the beginning, to understanding that domestic violence covers
From this testimony, it is clear that the father's therapists and counselors, who had worked with him during the two years prior to Franklin's evaluation, believed that the father had made progress and no longer displayed a high level of anger or hostility when dealing with stressful situations. This was especially apparent from Frazier's testimony about the father's participation in the domestic violence program and from Thomas' testimony explaining how the father had resolved a stressful situation at his workplace in a constructive manner without overreacting. If Franklin had had the benefit of these observations by the father's therapists and counselors, his conclusions regarding the father's progress and his ultimate recommendation might have been quite different. Accordingly, the trial court's finding that the father continued to demonstrate a "lack of insight in addressing his ongoing anger issues," which was based on the report Franklin prepared without the benefit of consulting the father's service providers, was clearly erroneous because that finding was not supported by clear and convincing evidence.
The trial court also expressed concern regarding the father's refusal to participate in a comprehensive psychiatric evaluation to determine if medication was required to address his mental health issues. The trial court stated: "Notably, [Franklin] opined that it was imperative that [the] father be referred for a psychiatric consultation in light of his impulse control issues and ADHD, and that would serve to identify medication that could be useful in ameliorating or managing his symptoms, and that, without medication, [the] father would most likely continue to have problems." Franklin's recommendation, however, was based on a single tentative comment by one of the father's prior therapists that never was repeated by any of his subsequent therapists or counselors. Rather, medication to control his mental health issues apparently became unnecessary based on the progress described by Thomas and Frazier in their testimony. See part II of this opinion.
As previously discussed, Burgos, the clinical social worker at Radiance who initially conducted a mental health evaluation of the father in September, 2010, before the specific steps were ordered, testified that she believed he required long-term therapy to address his "current life situation," meaning his "tumultuous relationship" with Shane's mother, and that ending the relationship with Shane's mother, which he had done at least one year prior to his interview with Franklin, very likely would resolve some of his mental health issues. Notably, Burgos did not recommend an evaluation for medication.
Thereafter, the only counselor who recommended possible medication was Sargis, who worked with the father in 2011, after Burgos left for another position. Sargis testified that she suggested initially that the father see a psychiatrist for a medical evaluation to cope with current stresses in
The trial court ultimately agreed with Franklin's finding that the father had failed to achieve sufficient personal rehabilitation in the two years preceding the termination proceeding. Although the trial court did not provide more detail regarding the factors on which Franklin relied in making this finding, Franklin's report ended with a recommendation that the father's parental rights should be terminated because (1) he had not continued with substance abuse treatment, (2) he had not participated in the domestic violence classes he needed to manage his anger, and (3) the time required to address these concerns had long since passed. As previously discussed, however, the father did continue with group therapy for substance abuse, and his counselor, Cyr, testified that he was in remission and required no further treatment. Frazier also testified that the father had completed a twenty-four week domestic violence program in 2012, presented a low risk of violence, and was using the skills he had learned in the group in his daily life. Thomas likewise testified that the father had demonstrated growth and was doing well with his problem solving skills. Accordingly, two of the three major findings that provided the basis for Franklin's recommendation to terminate the father's parental rights and the trial court's ultimate conclusion that the father had failed to rehabilitate were clearly erroneous because they were not supported by clear and convincing evidence.
One of the last persons to testify at the termination hearing in March, 2013, was Amita Patel, the most recent department social worker assigned to the father's case. In her report dated March 15, 2013, entitled "Amended Addendum to Social Study," she noted that the father had completed the group therapy program for substance abuse at Community Health Resources, that no further treatment was recommended, and that the results of an unsupervised urine screen on March 4, 2013, were negative. She also noted that
In her report and testimony, Patel stated that the department's recommendation to terminate the father's parental rights came down to three as yet unsatisfied requirements, namely, taking a hair follicle test, participating in the psychiatric evaluation recommended by Franklin to determine his need for medication, and accepting a parent mentor during visitation to enhance his parenting skills. I do not believe, however, that the father's failure to comply with these three requirements could have led the trial court to reasonably conclude, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to establish that the father had "failed to achieve the degree of personal rehabilitation that would encourage the belief that within a reasonable period of time, considering the age and needs of [Shane], [he] would assume a responsible position in the life of [that] child."
The father's therapists and counselors did not agree with Franklin that the father continued to have serious anger management issues, which was the basis for Franklin's recommendation that the father undergo a psychiatric examination to determine his need for medication. Accordingly, this recommendation was not supported by clear and convincing evidence of such a need.
Next, although the father resisted having a parent mentor at the visitations, he stated that he would be open to a mentor if he should be reunited with his two children. The department's recommendation that the father be assisted by a parent mentor during the visitations was apparently based on a suggestion by one of the visitation supervisors that the father would "benefit" from "a parent aide or some parental guidance. . . ." This same supervisor, however, also reported that the father's visitations were going well.
Keva Noel, an independent consultant who worked for Radiance and supervised the father's visitation with Shane and Shane's younger brother from April, 2012, until the time she testified in January, 2013, described the father's interactions with Shane and his brother as "appropriate." She elaborated that, although the father sometimes became frustrated, he normally conducted himself with a calm demeanor and used a level tone of voice. Noel stated that the only recommendation she had made was during the summer of 2012, when she suggested that the father could benefit from a parent aide or some parental guidance during his visits because of the conflicting demands of two very young children of different ages. She nonetheless stated that the overall success of the visits had been good, the father had interacted well with Shane, the two had bonded, and the only improvement would be learning how to better attend to the two children simultaneously.
Thomas likewise gave positive testimony regarding the father and his parenting skills. He testified that, when the father attended the parenting program conducted by Thomas, the father was receptive and open to parenting ideas, and that his own
Additional evidence regarding the father's parenting skills was provided by Shane's foster mother. She testified that she had been present during three of the father's supervised visits with Shane and that the visits went very well. In fact, she described the atmosphere as "like a birthday for Shane and also for the sibling," and stated that the father was "great" with the children. She also testified that, about one year earlier, the father had met the foster parents and Shane at a fast-food restaurant and that this occasion also went smoothly but that, two months later, a department social worker called and told the foster parents not to reach out to the father until further notice. She added that the father had given her a book with his voice, which Shane recognized as his father's voice, and that the father sent Shane gifts for Christmas and his birthday. Accordingly, although the father did not satisfy the department requirement of a parent mentor during his visitations with Shane, his resistance must be considered in light of other evidence indicating that he had a positive relationship and demonstrated appropriate parenting behavior with Shane, that his new wife was willing to assist him in parenting Shane, that he was willing to accept a mentor upon reunification and that Thomas had expressed interest in advising him on parenting issues should reunification occur.
The department's final unsatisfied requirement was the hair follicle test. Although the father refused this test and gave different excuses for doing so, his most recent excuse was that his attorney had advised him not to take it.
In conclusion, because there appears to be no basis for the psychiatric evaluation to determine the father's medication requirements, and because the father agreed to a parent mentor should the department order reunification, I believe the only remaining department requirement that has not been satisfied is the hair follicle test. Accordingly, the father's failure to complete these three requirements does not, in my view, satisfy the standard that "the trial court could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify its" determination that the father failed to achieve the level of rehabilitation required to reunify with Shane. (Emphasis added.) In re Soncheray H., supra, 42 Conn.App. at 668, 680 A.2d 1363.
Given the deficiencies in Franklin's evaluation of the father, including Franklin's failure to consider the testimony of the father's service providers in making his findings and recommendation, I disagree with the majority that the trial court properly determined, largely on the basis of Franklin's report, that the father could not achieve the level of rehabilitation required by the department in the reasonably foreseeable future.
In concluding that the father failed to rehabilitate, the majority relies on evidence regarding the father's conduct prior to November 24, 2010, including the car seat incident, several protective orders for domestic violence involving Shane's mother,
The remaining evidence on which the majority relies appears to be based on department reports concerning events in 2011, including the incident at the home of the father's grandparents and an arrest that was not reported to the department for possession of a controlled substance. The incident at the grandparents' home, during which the father poured gasoline on the kitchen floor and threatened but did not light or attempt to light a fire, resulted in a charge of disorderly conduct, a protective order between the father and his grandfather, and a sentence of three months incarceration, execution suspended, and one year of probation. Notably, the father subsequently expressed his remorse to Sargis and successfully completed his probation on February 10, 2013. He also successfully completed a twelve week domestic violence program with Frazier, who testified that the father was a low risk for violence, had come to accept that he had been an offender, and had demonstrated insight and growth. Thomas further reported that he believed the father no longer had any hyperactivity or anxiety issues and had learned how to use various calming techniques for dealing with stressful situations. Thomas added that the father and his grandfather now have a better relationship and that the father and his grandmother were still close. Nevertheless, neither Franklin nor the trial court marshaled and cited this evidence relating to the father's rehabilitation efforts and achievements following the gasoline pouring incident to assess what he had accomplished.
The only negative event on which the majority relies that occurred in 2012 was the father's refusal to take the single positive hair follicle test. Yet the majority concludes that "the [father] fail[ed] to continue with substance abuse treatment . . . [needed] active monitoring and testing for drug abuse . . . [lacked] insight in addressing his ongoing anger issues . . . [needed] a comprehensive evaluation concerning his medication needs, and . . . [failed] to achieve sufficient personal rehabilitation after such an extensive period of time. . . ." (Internal quotation marks omitted.) This quoted material is taken directly from the trial court's memorandum of decision, which is subject to the flaws discussed in this opinion. Accordingly, I would conclude that, in light of the testimony provided by the father's therapists and counselors, and the lack of any further incidents of major concern during the year or more prior to the termination proceeding, the trial court's determination that the father had failed to rehabilitate was not reasonable in light of the entire evidence. I also would conclude that the remaining evidence of the father's refusal to take another hair test and to accept a parent mentor at his visitations, given that he was willing to accept a mentor and further counseling if he should be reunited with Shane, was insufficient to conclude that the level of rehabilitation the father achieved fell short of that which would reasonably encourage a belief that, at some future date, the father could assume a responsible position in Shane's life.
Accordingly, I respectfully dissent.
"[The respondent] met [Shane's] mother in 2007 during high school. [The respondent] had [Shane's] mother stay at his grandparents' home when she was no longer allowed to stay with her aunt. [The respondent] did not have his grandmother's permission to do so and both [the respondent] and [Shane's] mother left the home. [The respondent] and [Shane's] mother then began sleeping in the train station or in [the respondent's] car. Thereafter, [the respondent] requested permission from his grandparents for [Shane's] mother to reside with them. When his grandparents refused, [the respondent] threatened to hang himself. [The respondent] was transported to the hospital after an attempted hanging at his grandparents' residence. When [Shane's] mother became pregnant with Shane in 2009, [the respondent] got an apartment where he and [Shane's] mother resided for approximately four months. [The respondent] was not able to continue to pay the rent and was not able to continue living with [Shane's] mother, so he returned to reside at his grandparents' home. . . .
"[The respondent] has a history of mental health issues. [The respondent] was admitted to the Institute of Living in June, 1999, for four days. He was diagnosed with depressive disorder and cannabis abuse. He was discharged and was prescribed Celexa on a daily basis and [it] was recommended [that he] attend North Central Counseling. [The respondent] did not continue to take the medication and did not follow up with attendance for the therapy. [The respondent] does not believe he has any current medical issues nor does he feel he needs any mental health services." (Footnote omitted.)
"There have been a total of four protective orders between [Shane's] mother and [the respondent] with [Shane's] mother being the protected person in three. The most recent protective order expired on September 28, 2010."
"We note that § 46b-129(k)(1) has been changed since the time of the department's motion for review of the proposed permanency plan. See, e.g., Public Acts, Spec. Sess., June, 2012, No. 12-1, § 273; Public Acts 2013, No. 13-234, § 71. Those changes, however, are not relevant to this appeal. For purposes of convenience and clarity, we refer to the current revision of the statute.
We note that § 46b-129(k)(2) has been changed since the time of the trial court's approval of the permanency plan. See Public Acts, Spec. Sess., June, 2012, No. 12-1, § 273. Those changes, however, are not relevant to this appeal. For purposes of convenience and clarity, we refer to the current revision of the statute.
General Statutes § 46b-129(c)(6) provides in relevant part: "The court, after a hearing pursuant to this subsection, shall order specific steps the commissioner and the parent or guardian shall take for the parent or guardian to regain or to retain custody of the child or youth. . . ."
General Statutes § 46b-129(j)(3) provides in relevant part: "The court shall order specific steps that the parent must take to facilitate the return of the child or youth to the custody of such parent."
By way of example, with regard to the trial court's function to weigh evidence at trial, the dissent has essentially ignored the fact that the respondent declined to submit to a hair test, which was definitive of his drug use history. It is simply not our role to overrule the trial court for refusing to overlook the fact that, given the choice between reuniting with his son or maintaining his body hair, the respondent declined a haircut, especially given the testimony by a social worker, Charles Frazier, who noticed that the respondent appeared to be under the influence of marijuana at one or two of his counseling sessions. Additionally, the dissent has overlooked the testimonies of two department social workers, Amita Patel and Leon, who both testified to facts that the court relied on in terminating the respondent's parental rights.
Finally, as the dissent appropriately notes, the respondent refused to undergo further counseling until after he was reunited with his child. The trial court was certainly not unreasonable in agreeing with the department that the respondent should not have the authority to decide whether he should attend therapy, as this would turn the child protection system on its head and would seriously undermine the department's ability to facilitate an effective and sustainable reunification. Indeed, it is far more reasonable for the court to be concerned about, and to take into account in determining that the respondent has failed to rehabilitate, that he has conceded that he needed further therapy before he was adequately rehabilitated but has simultaneously taken the position that Shane should continue to suffer under his care in the meantime.
Practice Book § 35a-7A provides in relevant part: "If a party requests that the judicial authority draw an adverse inference from a parent's . . . failure to testify or the judicial authority intends to draw an adverse inference, either at the start of any trial or after the close of the petitioner's case-in-chief, the judicial authority shall notify the [parent] . . . that an adverse inference may be drawn from [the parent's] failure to testify."
"The department filed a termination of parental rights petition in November, 2011. The parents' mental health has repeatedly been a presenting child protection issue in addition to substance abuse, transience, and criminal activity. . . .
"The father is . . . diagnosed with substance abuse and mental health issues. . . . A full clinical assessment will assist the court to determine the father's rehabilitative status now and in the foreseeable future to parent Shane. . . .
"Wherefore, the department requests that the court order the psychological evaluation as requested."
The trial court granted the motion and ordered the psychological evaluation on August 21, 2012.
"[The Father's Counsel]: You say . . . [in] your report . . . drug usage has created considerable problems in interpersonal relationships, work performance may have been compromised in the past. On what basis do you make that comment?
"[Franklin]: The personality portion of the evaluation is not based on an opinion. So what you are repeating here is not my opinion or, in fact, an interpretation. It's based on what the data [are] suggesting. So, if he has certain elevations with regard to drug usage or drug domain, the data [are] suggesting that individuals with similar kind[s] of profiles have this kind of propensity.
"[The Father's Counsel]: That's not what it says in this. It's under personality, so—
"[Franklin]: Right.
"[The Father's Counsel]: It does not say based on the data that this is—
"[Franklin]: No. It does say that. It says the results. If you look under it, that says he completed a personality assessment comprised of various instruments. Under that heading, all the data [are] related to those instruments. It's when you [get] to the summary questions where you start making interpretation[s] of what the data [are] indicating. So, what you are seeing on the personality and what you are seeing under the IQ score [are] data. For example, if you look at the last paragraph, it says domains for aggression are indicative of a short fuse. This is just data information.
"[The Father's Counsel]: You also say . . . [the father] scored in the clinically relevant range for paranoia. He is hypervigilant and closely monitors his environment for evidence that others are out to harm him. Now, that's based on a standardized test?
"[Franklin]: That's based again—I want to be clear. This is based on standardized tests, indicates that individuals with similar profiles have this propensity. Now, having said that, when you go to the interpretive part, in the summary questions . . . I'm not talking about paranoia. I'm not talking about these issues. Now, what I am talking about when you look at this, you see how it manifests itself. So, he can be overly suspicious. Sometimes he has problems with interpersonal relationships. But there is certainly no evidence of [a] psychiatric disorder or paranoia."
