Summary
ordering supplemental briefing to consider appropriate standard of review of trial court's finding that parent has failed to achieve sufficient rehabilitation
Summary of this case from Hinds v. Comm'r of Corr.Opinion
No. 19295.
08-28-2015
In re SHANE M.
Jon L. Schoenhorn, Hartford, with whom was Irene J. Kim, for the appellant (respondent father). Carolyn Signorelli, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner). Joshua Michtom, assistant public defender, filed a brief for the Office of the Chief Public Defender as amicus curiae.
Jon L. Schoenhorn, Hartford, with whom was Irene J. Kim, for the appellant (respondent father).
Carolyn Signorelli, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).
Joshua Michtom, assistant public defender, filed a brief for the Office of the Chief Public Defender as amicus curiae.
ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js.
Opinion
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 Appellate Court improperly affirmed the trial court's judgment terminating his parental rights pursuant to General Statutes § 17a–112(j)(3)(B) because the trial court allegedly relied on conduct not within the scope of the court-ordered specific steps when concluding that the respondent failed to rehabilitate, that there was insufficient evidence to support a finding that he had failed to rehabilitate, and that the trial court unfairly drew an adverse inference from his refusal to submit to a drug test. We reject these claims and affirm the judgment of the Appellate Court.
General Statutes § 17a–112(j) provides in relevant part: “The Superior Court, upon notice and hearing as provided in sections 45a–716 and 45a–717, may grant a petition [terminating parental rights] if it finds by clear and convincing evidence that ... (3) ... (B) the child (i) has been found by the Superior Court or the Probate Court to have been neglected or uncared for in a prior proceeding ... (ii) and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b–129 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....”
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 was homeless and refused to check in to a shelter. Approximately one month later, on June 8, 2010, police responded to a report of domestic abuse between the respondent and Shane's mother. The respondent refused to give Shane's car seat base to Shane's mother and physically moved her out of his way. The respondent then got into his car, at which point Shane's mother jumped on top of the respondent's car. The respondent started to drive away and caused Shane's mother to fall to the ground. As a result of this incident, both the respondent and Shane's mother were charged with breach of the peace and a protective order was issued between the two.
The trial court also terminated the parental rights of Shane's mother, who is not involved in the present appeal. The respondent and Shane's mother had a second child on December 20, 2011, who is referred to in this opinion as the “baby.”
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, feelings of abandonment by his mother, and past dysfunctional relationships. 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.
The trial court detailed the respondent's extensive personal history of neglect and mental health issues: “[The respondent's] history with [the department] commenced when he was a child dating back to 1993. He was committed to [the department's] care in August, 1999, due to issues of physical neglect, substance abuse and lack of adequate supervision. [The respondent] was placed with his paternal grandmother via subsidized transfer of guardianship. He was diagnosed with attention deficit hyperactivity disorder as a child and was prescribed Ritalin.
“[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.)
The trial court also detailed the respondent's domestic violence and criminal history: “He was convicted of breach of the peace [in the second degree] on December 10, 2009, for which he was sentenced to [ninety] days in jail, execution suspended and a conditional discharge for one year; possession of a controlled substance on May 3, 2011, for which he received a nolle.” He was also arrested for disorderly conduct on November 27, 2011, for threatening his grandfather and regularly kicking his dog.
“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.”
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 have no further involvement with the criminal justice system; and to cooperate with service providers' recommendations for parenting, individual and family counseling, in-home support services and/or substance abuse assessment treatment.
The respondent's complete specific steps were: (1) to keep all appointments with the department and cooperate with the department's home visits, announced or unannounced, and visits by Shane's court-appointed attorney and/or guardian ad litem; (2) to let the department and his and Shane's attorney know his and Shane's whereabouts at all times; (3) to participate in parenting counseling at Radiance and individual counseling at North Central Counseling to address issues of depression and anger management; (4) to participate in in-home support services referred by the department and cooperate with them; (5) to submit to substance abuse evaluation and follow the recommendations about treatment; (6) to submit to random drug screenings, the time and method of testing determined by the department; (7) to not use illegal drugs or abuse alcohol or medicine; (8) to cooperate with service providers recommended for parenting and individual counseling, in-home support services and/or substance abuse assessment and treatment, including the nonviolence alliance program for domestic violence counseling, Radiance for parenting, and North Central Counseling for individual counseling; (9) to cooperate with court-ordered evaluations or testing; (10) to sign releases allowing the department to talk to service providers to check on attendance, cooperation and progress toward identified goals and for use in future proceedings with the court; (11) to get or maintain a home and a legal source of income; (12) to immediately inform the department of any changes in the make-up of the household to make sure that the change does not hurt the health and safety of the child; (13) to cooperate with any protective or restraining order or safety plan approved by the department to avoid more domestic violence incidents; (14) to have no further involvement with the criminal justice system and to follow conditions of probation or parole; (15) to take care of Shane's physical, medical, or emotional needs, including keeping Shane's appointments with his medical, psychological, psychiatric, or educational providers; (16) to make all necessary child-care arrangements to make sure Shane is properly supervised and cared for by appropriate caretakers; (17) to keep Shane in the state; and (18) to visit Shane as often as the department permits.
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 express that he did not need therapy and presented with “a very high anxiety level and with problems coping with stress.”
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. As a result of these positive screens, the respondent was referred to an Alcohol and Drug Rehabilitation Center program. He was subsequently discharged from the program because he missed three scheduled appointments starting in October, 2011, and subsequently tested positive for marijuana in a hair follicle drug screen.
The respondent tested negative for marijuana in a random urine screen on August 25, 2011.
Pursuant to General Statutes § 46b–129(k)(1) and Practice Book § 35a–14, which reflect the legislature's intent that committed children be provided with permanency and stability, the department filed a motion to review its proposed permanency plan for Shane. The trial court approved the permanency plan of terminating parental rights on September 27, 2011. At this point, Shane had been in the commissioner's custody for ten months.
General Statutes § 46b–129(k)(1) provides in relevant part: “Nine months after placement of the child ... in the care and custody of the commissioner pursuant to ... an order issued by a court of competent jurisdiction ... the commissioner shall file a motion for review of a permanency plan....
“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.
Practice Book § 35a–14 is substantially similar in substance to General Statutes § 46b–129(k)(1) and any dissimilarities are not relevant to this claim.
General Statutes § 46b–129(k)(2) provides in relevant part: “At a permanency hearing held in accordance with the provisions of subdivision (1) of this subsection, the court shall approve a permanency plan that is in the best interests of the child ... and takes into consideration the child's ... need for permanency....”
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.
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 but [he] refused, feeling he did not need assistance with his parenting” and that he was fully capable of raising Shane himself. (Footnote added.)
See footnote 2 of this opinion.
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 November 27, 2011. The respondent, who had become upset with his grandfather while in his grandfather's home, went outside and returned with a can of gasoline and began to pour it on the kitchen floor. He then threatened to light the house on fire. He reportedly also kicked the family dog repeatedly. After this arrest, the court entered a protective order between the respondent and his grandfather. On February 10, 2012, he was sentenced to three months in jail, execution suspended, and probation for one year.
The respondent successfully completed his probationary period on February 10, 2013.
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 further determined that the respondent scored in “the clinically relevant range for paranoia.” Franklin opined that the respondent was “hypervigilant” and “overly suspicious,” and that he “closely monitor[ed] his environment for evidence that others [were] out to harm him.” The clinical personality assessments that Franklin conducted indicated that the respondent maintained “hostility and mistrust of even close relationships,” that he was “easily insulted and tend[ed] to hold grudges ... [was] quick to anger ... [and was] more likely to use verbal reasoning than physical aggression.” Testing indicated further, however, that the respondent “may become frustrated easily and when provoked will not back down from confrontation. This may lead to physical acts of violence. He otherwise possess[ed] adequate common sense reasoning,” while his judgment remained “situation specific.”
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, the trial court found by clear and convincing evidence that the department had made reasonable efforts to rehabilitate the respondent and to reunify him with Shane, and that the respondent had failed to rehabilitate or sufficiently benefit from the department's services. The trial court determined that the respondent had “not gained sufficient insight into his long-standing issues.” The trial court found especially troubling that the respondent continually asserted that he participated in the services only to appease the department, and that he repeatedly refused to cooperate with court-ordered recommendations. It also found disconcerting the fact that the respondent continued to state that he did not engage in substance abuse, yet refused to engage in substance abuse hair testing. The trial court was further concerned by the respondent's refusal to engage in a psychiatric evaluation to determine whether he required medication and that he did not make efforts “within a timely manner to adjust [his] circumstances or [his] conditions to the extent that [the department] would be able to reunify [him] with Shane. [He has] failed to fully meet or comply with the court-ordered steps and [he is] still unable to care for Shane.”
“Proceedings to terminate parental rights are governed by § 17a–112.... Under § 17a–112, a hearing on a petition to terminate parental rights consists of two phases: the adjudicatory phase and the dispositional phase. During the adjudicatory phase, the trial court must determine whether one or more of the ... grounds for termination of parental rights set forth in § 17a–112 [ (j)(3) ] exists by clear and convincing evidence.” (Citation omitted; internal quotation marks omitted.) In re Elvin G., 310 Conn. 485, 500, 78 A.3d 797 (2013). “If the trial court determines that a statutory ground for termination exists, then it proceeds to the dispositional phase. During the dispositional phase, the trial court must determine whether termination is in the best interests of the child.... The best interest determination also must be supported by clear and convincing evidence.” (Internal quotation marks omitted.) In re Melody L., 290 Conn. 131, 163, 962 A.2d 81 (2009), overruled in part on other grounds by State v. Elson, 311 Conn. 726, 754, 91 A.3d 862 (2014) ; see also General Statutes §§ 17a–112(k) and 45a–717(h).
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 conclude that it was proper for the trial court to rely on all of the respondent's contested conduct in its decision to terminate his parental rights, and that the trial court's determination that the respondent had failed to achieve sufficient rehabilitation was supported by clear and convincing evidence. Finally, we conclude that it was not unreasonable for the trial court to draw an adverse inference from the respondent's refusal to submit to a drug test. Accordingly, we affirm the Appellate Court's judgment.
Because we conclude that the conduct of the respondent on which the trial court relied was clearly related to the respondent's specific steps, we need not decide in this case whether § 17a–112(j)(3)(B) permits a court to consider conduct that is unrelated to the articulated steps.
I
We first set forth the applicable standard of review and general principles. The trial court is required, pursuant to § 17a–112, “to analyze the [parent's] rehabilitative status as it relates to the needs of the particular child, and further ... such rehabilitation must be foreseeable within a reasonable time. In re Marvin M., 48 Conn.App. 563, 578, 711 A.2d 756, cert. denied, 245 Conn. 916, 719 A.2d 900 (1998). Rehabilitate means to restore [a handicapped or delinquent person] to a useful and constructive place in society through social rehabilitation. [Webster's] Third New International Dictionary. The statute does not require [a parent] to prove precisely when [he] will be able to assume a responsible position in [his] child's life. Nor does it require [him] to prove that [he] will be able to assume full responsibility for [his] child, unaided by available support systems. It requires the court to find, by clear and convincing evidence, that the level of rehabilitation [he] has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date [he] can assume a responsible position in [his] child's life.” (Internal quotation marks omitted.) In re Eden F., 250 Conn. 674, 706, 741 A.2d 873 (1999). In addition, “[i]n determining whether a parent has achieved sufficient personal rehabilitation, a court may consider whether the parent has corrected the factors that led to the initial commitment, regardless of whether those factors were included in specific expectations ordered by the court or imposed by the department.” (Internal quotation marks omitted.) In re Melody L., 290 Conn. 131, 150–51, 962 A.2d 81 (2009), overruled in part on other grounds by State v. Elson, 311 Conn. 726, 754, 91 A.3d 862 (2014).
Although it is not clear that the respondent's claims were raised at trial, at least not with precision, we nevertheless will review them because minimal requirements for review are met and we conclude that the respondent cannot prevail on his claims. See Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 158 n. 28, 84 A.3d 840 (2014) (“[r]eviewing an unpreserved claim when the party that raised the claim cannot prevail is appropriate because it cannot prejudice the opposing party and such review presumably would provide the party who failed to properly preserve the claim with a sense of finality that the party would not have if the court declined to review the claim”).
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). The
General Statutes § 46b–129(b) provides in relevant part: “Upon issuance of an ex parte order [vesting temporary custody of a child in an agency or suitable person], the court shall provide to the commissioner and the parent or guardian specific steps necessary for each to take to address the ex parte order for the parent or guardian to retain or regain custody of the child or youth. Upon the issuance of such order, or not later than sixty days after the issuance of such order, the court shall make a determination whether the Department of Children and Families made reasonable efforts to keep the child or youth with his or her parents or guardian prior to the issuance of such order and, if such efforts were not made, whether such reasonable efforts were not possible, taking into consideration the child's or youth's best interests, including the child's or youth's health and safety....”
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.”
respondent's claims implicate the meaning and scope of the specific steps, which constitute an order of the court. Generally, court orders “are to be construed in the same fashion as other written instruments,” with the determinative factor being the intention of the court. (Internal quotation marks omitted.) State v. Denya, 294 Conn. 516, 529, 986 A.2d 260 (2010). Specific steps may be augmented with supplemental orders, per the trial court's discretion. In re Leah S., 284 Conn. 685, 696, 935 A.2d 1021 (2007). “[The] completion or noncompletion [of the specific steps], however, does not guarantee any outcome.” In re Elvin G., supra, at 508, 78 A.3d 797. “Accordingly, successful completion of expressly articulated expectations is not sufficient to defeat a department claim that the parent has not achieved sufficient rehabilitation.” (Internal quotation marks omitted.) Id.
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. We have historically reviewed for clear error both the trial court's subordinate factual findings and its determination that a parent has failed to rehabilitate. See, e.g., id., at 499, 78 A.3d 797. While we remain convinced that clear error review is appropriate for the trial court's subordinate factual findings, we now recognize 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).588 Accordingly, we now believe that the appropriate standard of review is one of evidentiary sufficiency, that is, “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 [ultimate conclusion].... When applying this standard, we construe the evidence in a manner most favorable to sustaining the judgment of the trial court.” (Citation omitted.) In re Soncheray H., 42 Conn.App. 664, 668, 680 A.2d 1363, cert. denied, 239 Conn. 940, 684 A.2d 712 (1996).
On May 20, 2015, we ordered, sua sponte, the parties to submit supplemental briefs on the appropriate standard of review.
By way of example, these findings include whether the parent has gained insight into his or her mental health issues, complied with recommendations stemming from his or her specific steps, as well as the trial court's observations of the parent and the conduct of the parent during the course of termination proceedings.
Turning to the case before us, the respondent contends that three of the findings that the trial court relied on did not fall within the scope of the court-ordered specific steps, namely, that the respondent: (1) rejected the assistance of a parental aide in a clinical setting; (2) participated in ordered programs only to “ ‘appease’ ” the department rather than acknowledging that he needed the programs; and (3) declined to undergo a psychiatric consultation, as recommended by Franklin, to determine whether he might benefit from medication for attention deficit hyperactivity disorder and his other mental health issues. We will examine each factor in turn.
The respondent also claims that a fourth finding by the trial court, namely, that the respondent continued to use marijuana, was based on insufficient evidence. As we have discussed in greater detail herein, we conclude that the trial court's finding that the respondent continued to abuse drugs was not clearly erroneous.
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 mental health issues clearly contravenes the specific steps requiring him to cooperate with court-ordered evaluations and testing and with recommendations regarding assessment and treatment. As detailed by the trial court, the respondent had a history of serious mental health issues, including suicidal gestures, and had been diagnosed in a clinical assessment with, inter alia, mixed anxiety and depressed mood and attention deficit hyperactivity disorder. The respondent's contention that “[n]owhere in [the] record is there any evidence that [he] needed medication for [attention deficit hyperactivity disorder ] or anxiety” ignores the recommendation made by Lisa Sargis, a social worker for Radiance, who reported that he could benefit from an assessment for medication and the testimony of Leon that she had discussed Sargis' recommendation for a medical evaluation with the respondent prior to November, 2012. Moreover, the court properly relied on Franklin's testimony about the unreliability of the report of the respondent's February, 2011 psychiatric evaluation, which was based on the respondent's selective and inaccurate description of his personal history and which had spurred Franklin's recommendation for a second evaluation. As we have repeatedly stated, “[c]ourts are entitled to give great weight to professionals in parental termination cases.” (Internal quotation marks omitted.) In re Melody L., supra, 290 Conn. at 161, 962 A.2d 81. We therefore conclude that the trial court properly found that the respondent had adequate notice via his specific steps that he needed to complete an assessment to determine whether medicine might help him control his mixed anxiety, depressed mood and attention deficit hyperactivity disorder.
In addition to arguing that the conduct upon which the trial court relied fell outside the scope of the specific steps, the respondent contends that the trial court used this conduct to improperly create “eleventh hour” concerns. We disagree. Contrary to the respondent's assertion, the trial court properly considered the respondent's actions up to and during trial to determine that he did not rehabilitate within a reasonable time. See Practice Book § 35a–7 (a) (“[i]n the adjudicatory phase, the judicial authority is limited to evidence of events preceding the filing of the petition or the latest amendment, except where the judicial authority must consider subsequent events as part of its determination as to the existence of a ground for termination of parental rights ” [emphasis added] ); In re Kyara H., 147 Conn.App. 855, 879, 83 A.3d 1264 (trial court properly considered events occurring after petition to terminate parental rights had been filed in its determination that parent had not sufficiently rehabilitated), cert. denied, 311 Conn. 923, 86 A.3d 468 (2014).
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.
II
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 a reasonable period of time. In particular, the trial court found that the respondent was reported for domestic abuse, charged with breach of the peace and was subject to a protective order after he refused to deliver Shane's car seat base to Shane's mother, physically moved her away, and then drove his car while Shane's mother was on top of the car, causing her to fall. The trial court found further that for a period of time, the respondent cohabited with Shane's mother, despite four protective orders between the two for domestic violence. The day after the respondent was diagnosed with adjustment disorder with mixed anxiety and depressed mood, attention deficit hyperactivity disorder, and cannabis abuse, he was arrested for breach of the peace and trespassing when he tried to break down the door at the residence of Shane's mother with a chair. The respondent's first psychiatric evaluation appeared to be self-reported and inaccurate. He continued to exhibit a very high anxiety level and problems coping with stress despite the department's continued efforts to assist him through counseling. He was arrested for possession of a controlled substance and for driving unreasonably fast, which he did not report to the department. He was sentenced to three months in jail for disorderly conduct, after he had completed domestic violence sessions and after the department had petitioned to terminate his parental rights, for pouring gasoline on his grandfather's kitchen floor and for repeatedly kicking the family dog. The respondent continued to test positive for marijuana from August, 2011, to after the department petitioned to terminate his parental rights and up until June, 2012, less than four months before his trial commenced. The respondent did not attend some counseling sessions, refused to participate in others, or participated only to satisfy the department. In sum, the respondent “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....”
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.
In reviewing the trial court's decision, “[b]ecause it is the trial court's function to weigh the evidence ... we give great deference to its findings.” (Internal quotation marks omitted.) Ahmadi v. Ahmadi, 294 Conn. 384, 398, 985 A.2d 319 (2009). Additionally, we do not have the jurisdiction to retry the facts of this case.Dexter Yarn Co. v. American Fabrics Co., 102 Conn. 529, 538, 129 A. 527 (1925). The dissent seems to rely in part on alleged gaps in Franklin's report and on selective testimony from the trial that reflects some behavior by the respondent that was compliant with steps provided by the department and, based on this, attempts to discredit the expert's opinion as unsupported by clear and convincing evidence. In doing so, the dissent ignores testimony from other witnesses that was relied on by the trial court and that strongly supports the court's conclusions.
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.
III
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 well as General Statutes § 46b–137(d), in reasoning as it did. Specifically, the respondent claims that failing to notify him of the possibility of such an inference constituted trial by ambuscade and deprived him of the right to a fair trial. We conclude that the respondent had adequate notice of the consequences of his failing to adhere to the specific steps ordered by the trial court and that the trial court properly inferred that the respondent continued to engage in substance abuse.
Practice Book § 32a–1(h) provides in relevant part: “Any confession, admission or statement, written or oral, made by the parent ... of the child or youth after the filing of a petition alleging such child or youth to be neglected ... shall be inadmissible in any proceeding held upon such petition against the person making such admission or statement unless such person shall have been advised ... that any statements such person makes may be introduced in evidence against such person.”
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 language of § 46b–137(d) is substantially similar to that of Practice Book § 32a–1(h), and any dissimilarities are irrelevant to the present appeal.
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 omitted; footnotes omitted; internal quotation marks omitted.) In Re Samantha C., 268 Conn. 614, 635–36, 847 A.2d 883 (2004). “[P]roof of a material fact by inference from circumstantial evidence need not be so conclusive as to exclude every other hypothesis. It is sufficient if the evidence produces in the mind of the trier a reasonable belief in the probability of the existence of the material fact.... Thus, in determining whether the evidence supports a particular inference, we ask whether that inference is so unreasonable as to be unjustifiable.... In other words, an inference need not be compelled by the evidence; rather, the evidence need only be reasonably susceptible of such an inference.” (Internal quotation marks omitted.) Curran v. Kroll, 303 Conn. 845, 857, 37 A.3d 700 (2012).
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 find unpersuasive the respondent's claim that, even properly drawn, this inference did not prove that he failed to rehabilitate because criminal penalties for possession of marijuana have been reduced and the legislature has approved the use of marijuana for palliative medical purposes. Suffice it to say, regardless of marijuana's recent limited legalized status, the respondent was ordered to refrain from using it due to his extensive personal history of substance abuse.
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, 17, 687 A.2d 903 (1996), cert. denied, 240 Conn. 916, 692 A.2d 814, cert. denied, 522 U.S. 823, 118 S.Ct. 81, 139 L.Ed.2d 39 (1997) (test designed to detect gun powder residue “does not involve testimony or communications, [thus] the refusal to submit to it does not constitute invocation of the right to remain silent, and admission of the evidence of such refusal does not constitute commentary on a defendant's choice to remain silent”); In re Kasmaesha C., 148 Conn.App. 666, 679 n. 9, 84 A.3d 1279 (court's reliance on respondent's competency evaluation in assessing respondent's ability to achieve rehabilitation not plain error), cert. denied, 311 Conn. 937, 88 A.3d 549 (2014). “[C]ompulsion which makes a suspect or accused the source of real or physical evidence does not violate a person's constitutional rights as it is not such as compels communications or testimony.” (Internal quotation marks omitted.) State v. Campfield, supra, at 16, 687 A.2d 903. We thus conclude that the Appellate Court properly declined to expand the parent and child testimonial “right to silence” articulated in Practice Book § 32a–1(h) and General Statutes § 46b–137 and discussed in In Re Samantha C., supra, 268 Conn. at 635–36, 847 A.2d 883, to the refusal to submit to a court-ordered drug test.
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.” In making this finding, the court relied heavily on the report and testimony of Derek A. Franklin, a licensed clinical psychologist who conducted a psychological evaluation of the father on September 20 and 25, 2012, “[to] assist the court [in determining] the father's rehabilitative status now and in the foreseeable future to parent Shane.” The trial court deemed Franklin's report and testimony “highly credible” and agreed with his recommendation that the father's parental rights should be terminated because the recommendation was based on Franklin's “review of the history, the empirical data, and his findings that a number of concerns continue to persist, specifically [the] father's failure to continue with substance abuse treatment, his need for active monitoring and testing for drug abuse, his lack of insight in addressing his ongoing anger issues, his need for a comprehensive evaluation concerning his medication needs, and his failure to achieve sufficient personal rehabilitation after such an extensive period of time....” In my view, however, Franklin's findings and recommendation were insufficient to support the trial court's conclusion. Franklin failed to consider several treatment programs that the father successfully completed during the preceding year for the purpose of complying with the specific steps, and, therefore, Franklin's findings and recommendation were based in part on outdated information that did not describe the father's condition at the time of the termination proceeding. In addition, Franklin failed to consult any of the substance abuse or mental health counselors who had been working with the father for the past several years and thus did not have the benefit of their opinions. Rather, Franklin relied on a series of department reports, some of which were outdated and did not describe the father's recent progress, and on a battery of personality tests that provided information regarding the general propensities of persons with similar results but no information regarding the father's actual behavior. Accordingly, to the extent the trial court found, on the basis of Franklin's findings and recommendation, that the father had failed to rehabilitate, its finding was not supported by clear and convincing evidence because Franklin's conclusions were based in large part on generalized propensity information and a series of outdated department reports, and any remaining facts the trial court correctly found were insufficient to support the termination of the father's parental rights.
“We previously have explained that [p]ersonal rehabilitation ... refers to the restoration of a parent to his or her former constructive and useful role as a parent ... [and] requires the trial court to analyze the [parent's] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time.... [General Statutes § 17a–112(j)(3)(B)(ii) ] does not require [a parent] to prove precisely when [he] will be able to assume a responsible position in [his] child's life. Nor does it require [him] to prove that [he] will be able to assume full responsibility for [his] child, unaided by available support systems. It requires the court to find, by clear and convincing evidence, that the level of rehabilitation [he] has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date [he] can assume a responsible position in [his] child's life.” (Internal quotation marks omitted.) In re Elvin G., 310 Conn. 485, 507, 78 A.3d 797 (2013).
The evaluation was conducted pursuant to a court order issued in response to the department's motion dated August 8, 2012, requesting a psychological evaluation of Shane's mother and the father pursuant to General Statutes § 45a–717(d). The motion stated in relevant part: “[T]he [department] ... hereby requests that [the] ... court order a ... clinical evaluation of the father with parent-child interactions....
“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.
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 findings.” (Internal quotation marks omitted.) In re Soncheray H., 42 Conn.App. 664, 668, 680 A.2d 1363, cert. denied, 239 Conn. 940, 684 A.2d 712 (1996). Under both standards, “we construe the evidence in a manner most favorable to sustaining the judgment of the trial court.” Id.; see also In re Jorden R., supra, at 559, 979 A.2d 469 (“every reasonable presumption is made in favor of the trial court's ruling” [internal quotation marks omitted] ).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. In addition, Franklin observed the father during a forty minute supervised visit with Shane, as ordered by the court. Although Franklin also was in possession of the test results and other documentation provided by the department, I believe two hours and forty minutes of interacting with the father and observing him with Shane was an insufficient amount of time with the father to determine his rehabilitation status.
Franklin testified that he spent a total of five hours with the father, during two of which the father was taking tests by himself. Franklin also observed the father and Shane during a forty minute supervised visit, thus leaving slightly more than two hours to conduct a one-on-one interview with the father.
Second, Franklin testified that the results of several of the father's personality tests discussed in Franklin's report did not necessarily describe the father but, rather, described the general propensities of persons with similar test results. Thus, to the extent the interpretive section of Franklin's written report suggested that the propensities indicated by the test results described the father's actual conduct, there is no support for this conclusion.
Franklin administered one intelligence test, four mental status and personality tests, and one substance abuse test.
The following colloquy took place during the father's counsel's cross-examination of Franklin:
“[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.”
In the interpretative section of his report, Franklin repeated verbatim much of the propensity data drawn from the test results, thereby suggesting that the father actually exhibited such propensities in his everyday life. For example, Franklin repeated in the interpretive section that “there is evidence of prominent paranoia which does not rise to a level of delusion.” He also concluded, on the basis of the propensity data: “[The father] is hypervigilant and monitors his environment for evidence that others are out to harm him. This may often result in some level of hostility and mistrust of others. Anxiety and mood dysregulation are not debilitating, however, they are likely to impact on the quality of his relationships with others as he typically is hypervigilant, may [question] the motives of others and is highly suspicious with negative consequences.” When cross-examined on these interpretive statements, however, Franklin stated: “There is nothing definitive in the record that suggests that he will do that. But the data [suggest] that people with this type of profile may do that.” Franklin later added, when the father's counsel persisted by asking whether the statement on hostility was speculative: “Right. That's a speculation in that particular response.”
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, four other documents were prepared after the specific steps were ordered but more than one year before Franklin interviewed the father, and, of the three remaining documents, two were prepared approximately ten months, and the other approximately three months, before Franklin interviewed the father. The department thus provided Franklin with very little recent information regarding the father's rehabilitation progress at the time of the evaluation. Furthermore, Franklin stated in his written evaluation that the “most recent status report update that [he was] in receipt of from [the department was] dated July 6, 2011,” almost fifteen months before Franklin's evaluation of the father in late September, 2012. This admission not only suggests that Franklin relied on outdated information, but raises the question of whether Franklin was aware of the status updates included in the three most recent department documents relating to the termination proceeding that were listed as collateral data sources in Franklin's report. See footnote 9 of this opinion.
The four documents prepared before the initial specific steps were issued to the father consisted of: (1) “Summary of Facts Substantiating Neglect,” dated August 11, 2010, prepared by Janet Feliciano, social worker; (2) “Social Study for Superior Court for Juvenile Matters,” dated October 4, 2010, prepared by Stephanie Duncan, social worker; (3) “Status Report,” dated November 3, 2010, prepared by Duncan; and (4) “Social Worker Affidavit,” dated November 19, 2010, prepared by Duncan.
The four documents prepared between thirteen and twenty-two months before Franklin interviewed the father consisted of: (1) “Addendum to Social Study for Superior Court for Juvenile Matters,” dated January 5, 2011, prepared by Stephanie Duncan, social worker; (2) “Status Report,” dated April 18, 2011, prepared by Yolanda M. Leon, social worker; (3) “Status Report,” dated July 6, 2011, prepared by Leon; and (4) “Study in Support of Motion to Review Permanency Plan,” dated August 11, 2011, prepared by Leon.
The remaining three documents were: (1) “Summary of Facts to Substantiate Petition for Termination of Parental Rights,” dated November 23, 2011, prepared by Yolanda M. Leon, social worker; (2) “Social Study in Support of Termination of Parental Rights Petition,” dated December 30, 2011, prepared by Leon; and (3) “Study in Support of Motion to Review Permanency Plan,” dated July 2, 2012, prepared by Leon.
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. He added that he typically called all service providers listed by the department when evaluations were requested, that he had done so in this case, and that none of his calls had been returned, although he was unable to remember the names of specific persons he had called. Franklin thus prepared his report without the input of a single service provider, many of whom gave testimony at the termination hearing in January, 2013, regarding the father's condition and progress that flatly contradicted Franklin's findings. Although the trial court neither credited nor discounted this testimony, it very likely would have influenced Franklin's report and recommendation, which the trial court cited multiple times in concluding that the state had satisfied its burden of proving the father's failure to rehabilitate by clear and convincing evidence.
Although it is unclear which names were on the list of authorized persons, Franklin could have sought permission from the department to speak to Burgos, Frazier, Sargis and Thomas, all of whose names appeared in the department documents and who were listed as collateral data sources, in order to obtain additional or more updated information.
In sum, I believe the foregoing limitations in Franklin's report resulted in findings by the trial court regardingthe 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.
I
SUBSTANCE ABUSE
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 substances to obtain emotional control and management of his anxiety. The trial court also cited Franklin's recommendation that the father should continue to be treated for substance abuse and “engage in substance abuse groups due to his concern that [the] father was actively using [drugs], as the clinical data suggest[ed] that, at [the] very minimum, he continue[d] to crave cannabis and, therefore, [was] subject to relapse.” (Internal quotation marks omitted.) The court finally noted Franklin's recommendation that the father, in addition to participating in substance abuse groups, should be subject to “active monitoring and testing for drug abuse....”
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.
II
ANGER MANAGEMENT ISSUES
The trial court also relied on Franklin's findings regarding the father's anger management issues in concluding that he had failed to rehabilitate. The court stated: “Franklin diagnosed [the] father with attention deficit hyperactivity disorder [ADHD], generalized anxiety disorder, and cannabis abuse and antisocial traits.... Testing performed by ... Franklin indicated elevations [in] the clinical domains of ADHD, anxiety, paranoia ... antisocial [traits] and aggression. There was no evidence of a major depressive disorder, but there was sufficient evidence of mood dysregulation exacerbated by anxiety. Specifically, [d]omains tapping for anxiety suggest prominent worry. These worries may be of such magnitude that concentration and attending are compromised.... Franklin also opined that [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. He is overly suspicious. [Psychological testing] indicate[s] hostility and mistrust [in] even close relationships. He is easily insulted and tends to hold grudges. Paranoia does not arise to a level of delusions. There is no evidence of auditory, visual or kinesthetic hallucinations or disturbance in thought content or processing. Domains ... tapping for aggression are indicative of a short fuse, as he is quick to anger.... [H]e is more likely to use verbal reasoning than physical aggression. However, he may become frustrated easily and, when provoked, will not back down from confrontation. This may lead to physical acts of violence. He otherwise possesses adequate commonsense reasoning, and [his] judgment is situation specific.... Franklin further opined that [the] father was emotionally stable, but there was evidence to indicate that he may become hostile when under emotional duress.
“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, for mental health issues and diagnosed him with an adjustment disorder accompanied by mixed depression and anxiety. Burgos recommended that he participate in a parenting program and long-term therapy to address his “current life situation,” adding that “[h]e was essentially in crisis in relation to his tumultuous relationship with [Shane's mother] and having a very difficult time coping, especially very nervous and anxious about the custody of [Shane].” She stated that ending the relationship with Shane's mother likely would resolve some of his mental health issues, which appeared to be “situational,” and that the father had indicated to her that he had enjoyed, learned and profited from the parenting program.
Burgos testified that she had conducted the assessment “a couple of years ago, give or take,” but the trial court indicated in its memorandum of decision that the assessment had been conducted 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 a wide spectrum of behavior and recognizing that he had been an offender. Frazier testified that the father was using the skills he learned in the group and that he understood and demonstrated insight into how important a violence free environment is to children, as well as the adverse consequences for children who are exposed to violence. Frazier added that he had seen growth in the father's ability to manage impulsive behaviors and anxiety and to develop a long-term perspective in problem solving.
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.
III
MEDICATION NEEDS
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 his life, acknowledged a concern regarding his impulse control upon learning of the incident at his grandparents' home in November, 2011, and recommended that he continue to work on anger management and coping skills when she left for another job in January, 2012. Sargis also testified that she did not know if medication was required because she was not a psychiatrist and noted that the father seemed to be functioning well in most areas of his life. Under Thomas' guidance, the father's anxiety reportedly diminished. Thomas specifically testified that the father no longer had hyperactivity issues and that his anxiety no longer was a concern. Frazier also testified that the father had done well in his domestic violence class, was a low risk for violence, and had developed insight into his anger management issues. As a consequence, the trial court's findings, based on Franklin's report, that the father still had impulse control issues that required medication and that he most likely would continue to have problems managing his symptoms without medication were clearly erroneous because they were not supported by clear and convincing evidence from the father's therapists and counselors, each of whom had worked with him for many months and knew him far better than Franklin.
IV
FAILURE TO ACHIEVE SUFFICIENT REHABILITATION
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.V
OUTSTANDING UNRESOLVED STEPS
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 the father had successfully completed the terms of his probation on February 10, 2013, although he had been issued a speeding ticket on February 6, 2013. She further stated that the father reported he would share childcare duties with his new wife upon reunification with his children and that he planned on using family members as backup caregivers. Patel stated that she had met the father's wife and that she maintained full-time employment, was willing to participate in a substance abuse evaluation and was confident in her parenting skills, as she had helped raise her godchild, nieces and nephews.
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 ideas were consistent with those discussed in the training program. Thomas also described the father as a “nurturing kind of person” and indicated that he would be interested in having follow-up visits with the father after reunification to assist with the transitioning process. Thomas added that the father's new wife was ready to support and help the father if he was reunified with his children.
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.
VI
THE MAJORITY OPINION
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, and the father's arrest for breach of the peace resulting from his attempt to break down the door to the home of Shane's mother. This evidence, however, describes the father's conduct before the specific steps were ordered and, therefore, has no relevance except as a baseline against which to measure his future rehabilitation.
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. See, e.g., In re Elvin
The majority claims that I ignore testimony that strongly supports the trial court's conclusions, including testimony that the father refused to submit to a hair test, refused to have a parental aide during his visitations with Shane, and refused a psychiatric evaluation to determine his need for medication. To the contrary, I not only recognize this testimony, but explain why, when considered together with all of the other evidence, it does not 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. As for Frazier's testimony that the father appeared to be under the influence of marijuana during one or two of his counseling sessions in early 2012, this testimony is of questionable value. When further pressed, Frazier testified that the father denied being under the influence, there was no proof that he was under the influence, he was “lucid” and “able to articulate” during the session or sessions and, therefore, that Frazier could not be sure that the father in fact was under the influence. The majority thus overstates the value of this testimony, especially given the gravity of a parental rights termination proceeding.
G., 310 Conn. 485, 507, 78 A.3d 797 (2013). Thus, I believe this court should reverse the judgment of the Appellate Court and remand the case with direction to reverse the judgment of the trial court terminating the father's parental rights.
Because I would reverse the trial court's judgment on this evidentiary ground, I would not reach the issues of whether the trial court's findings fell within the scope of the court-ordered specific steps and whether the court was required to inform the father that his refusal to submit to a hair follicle test could result in an adverse inference that he was continuing to engage in substance abuse.
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Accordingly, I respectfully dissent.