January 20, 2009
TERMINATION OF PARENTAL RIGHTS/ FAILURE TO REHABILITATE/ REASONABLE EFFORTS/ CHILDREN’S RIGHT OF APPEAL/ HEIGHTENED SCRUTINY
In this complex termination of parental rights appeal, the respondent mother appealed the trial court’s judgment of termination as to her five children, alleging that the trial court (1) improperly found that DCF had made reasonable efforts toward reunification; (2) erroneously determined that she had failed to rehabilitate; and (3) violated her rights under the state and federal constitution by terminating her parental rights. Four of her children also filed appeals, challenging both the trial court’s judgment of termination and its subsequent denial of their motion for visitation pending the outcome of the TPR appeal. The Supreme Court affirmed the judgment of the trial court and dismissed the children’s visitation appeal as moot.
The respondent first alleged that the trial court’s finding that DCF had made reasonable efforts to reunify the family was clearly erroneous in light of the department’s failure to provide joint or family therapy. The Court rejected this argument, listing the “numerous services and programs” offered by the department to aid in reunification and noting that evidence in the record belied the mother’s claim that the department had failed to offer family therapy. The Court noted that DCF provided family therapy “where appropriate,” and described one occasion where the respondent failed to attend the first and only joint therapy session scheduled with her daughter. Citing appellate case law, the court concluded that even if additional family therapy were necessary, it would not have rendered the trial court’s decision clearly erroneous, since “reasonable efforts means doing everything reasonable, not everything possible.” (Emphasis added.)
The Court also rejected the respondent’s claim that her compliance with the court-ordered specific steps belied the trial court’s finding that she had failed to rehabilitate. The Court noted that though the mother participated in numerous therapeutic services, the trial court’s finding that she failed to make adequate progress toward treatment goals, failed to consistently submit to drug testing, and only secured part-time rather than full-time employment, were not clearly erroneous. Citing In re Vincent D., 65 Conn. App. 658, 670 (2001), the Court held that it is appropriate for the trial court to go beyond the letter of the specific steps and consider whether the parent has “corrected the factors that led to the initial commitment.” Although the record revealed that the respondent was attached to her children, the Court held that the trial testimony of the court-appointed evaluator supported the finding that the respondent failed to accept responsibility for the abuse of her children and lacked “the intellect and understanding necessary to effect productive changes.”
The Court summarily dismissed the respondent’s constitutional claims, noting that the claims had not been raised at trial and that the respondent had failed to seek review under State v. Golding, which permits appellate review of unpreserved constitutional claims.
Turning to the children’s appeal, the Supreme Court held (for the first time) that a child has standing to appeal a trial court’s judgment of termination. Citing both Connecticut case law and a decision out of Virginia, the Court concluded that “both the [parents] and the children have a mutual interest in the perseveration of family integrity, and the termination of parental status is irretrievably destructive of that most fundamental family relationship.”
The Court then turned to the substantive issues raised by the appeal, including the children’s claim that (1) the trial court improperly admitted and relied on expert testimony from Dr. Rogers; (2) the trial court erroneously determined that termination was in the best interests of Melody and Jaime; and (3) termination without a jury trial violated the state constitutional rights of both the respondent and Neri Jasmin.
As to the first claim, the children argued that the trial court’s heavy reliance on the evaluator’s testimony and reports was improper, since he wasn’t qualified as an expert in sexual abuse trauma and didn’t spend a sufficient period of time with the family. In addition, the children alleged that permitting the evaluator to testify as to the ultimate issue in the case was a clear abuse of discretion. The Court rejected both of these arguments, noting that the evaluator met with the family on five separate occasions, and he never testified at trial about issues specifically related to sexual abuse trauma. Moreover, the Court agreed with DCF’s position that the evaluator’s expert opinion testimony on the ultimate issue was permitted by § 7-3(a) of the Connecticut Code of Evidence and that all parties had agreed to allow the evaluator to make a finding regarding personal rehabilitation.
The Supreme Court also rejected Melody and Jaime’s argument that the trial court improperly concluded that termination was in their best interests. The Court cited a string of appellate case law in support of its position that termination may still be in the best interests of a child even when a bond exists.
Finally, the Court summarily dismissed the children’s final two arguments-that termination of parental rights without a jury trial violated Neri Jasmin’s state constitutional rights, and that the trial court failed to accurately apply a best interests standard when ruling on the motion for visitation pending the outcome of the termination appeal. On the state constitutional issue, the Court dismissed the claim as improperly preserved. As to the visitation issue, the court ruled that the outcome of the termination appeal rendered the visitation appeal moot.
In an interesting and lengthy concurrence, Justice Schaller urged the Court to adopt a higher standard of review for termination of parental rights cases, given the significant liberty interest involved. Justice Schaller reasoned that due process “requires that a reviewing court examine the record scrupulously to determine whether the trial court’s termination of parental rights is supported by substantial evidence.” Under this level of heightened review, already applied in criminal appellate cases, Justice Schaller wrote that he would have reversed the trial court’s judgment of termination, noting that (1) DCF failed to make reasonable efforts toward reunification in three important areas: family therapy, visitation, and offering adequate support services during the department’s first attempt at reunification; (2) DCF failed to establish by clear and convincing evidence that the respondent was unable to benefit from additional services, in light of testimony to the contrary by the GAL, the respondent’s therapist, and several other mental health care providers, as well as the respondent’s compliance with the court-ordered specific steps and the “exceptional effort” she made “to obtain services to become a better parent”; and (3) termination was not in the best interests of the child, based on a scrupulous review of the record and the testimony of the children’s GAL.
The majority opinion may be accessed by going to the Judicial Branch website athttp://www.jud.ct.gov/external/supapp/Cases/AROcr/CR290/290CR138.pdf
The concurrence is available athttp://www.jud.ct.gov/external/supapp/Cases/AROcr/CR290/290CR138A.pdf
Filed in Tags: Abuse and Neglect
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