May 1, 2023

In re Kylie P. (AC 45434)

March 2023

Mother appealed the judgment terminating her parental rights.  She had come to the United States on a tourist visa and, two months later, gave birth to the child in Hartford. Mother returned to Jamaica with the child, but later sent her to live with relatives in Connecticut when she was unable to care for her.  DCF became involved when one of the relatives physically abused the child, and Mother, at that time living in Nevada, remained unable to care for her or identify another caretaker. Thereafter, the court adjudicated the child neglected, and ordered final steps for Mother. Mother returned to Connecticut, where she was unable to obtain a job or housing due to her lack of citizenship or documentation, but did attend in-person visits and maintain telephone and virtual contact with the child, as well as attend counseling. Subsequently, Mother moved to Mississippi, and continued to have regular virtual contact with the child for approximately 2 years, although declined to continue therapy. While in Mississippi, Mother gave birth to another child.  DCF, on learning of that child’s birth, verified its well-being through contact with the child protective services agency in Mississippi. Thereafter, DCF filed a TPR petition as to the first child.  DCF subsequently learned that Mother had moved to Nevada with the subsequent child, where she received counseling and assistance with immigration though a homeless shelter and, ultimately, obtained employment and her own apartment. The trial court found that Mother had failed to rehabilitate sufficiently to satisfy the requirements of the applicable statute.

On appeal, Mother claimed, inter alia, that the trial court violated her rights to due process by ordering the child’s attorney to call an additional witness at trial after the close of evidence, and was precluded from finding that she failed to rehabilitate because DCF interfered with her parent-child relationship by threatening to remove her subsequent child if she returned to Connecticut. The Court here held:

  1. Contrary to Mother’s claim, the evidence before the trial court was sufficient to support its factual finding that DCF made reasonable efforts to reunify. The evidence before the court included: DCF’s referral to mental health services; supervised, in-person visitation in Connecticut; referrals to agencies to assist her with housing, immigration and employment issues; DCF’s continual efforts to contact Mother after she had left the state; DCF’s offers to pay for mental health treatment outside of Connecticut; and its encouragement to communicate with the child’s therapist. Moreover, although some of DCF’s efforts to assist Mother with housing and employment were unsuccessful due to her immigration status, DCF was persistent in making referrals for her to assistive services, and made reasonable efforts under the circumstances of this case.  Furthermore, it was reasonable, under the circumstances, for DCF to defer providing some services to Mother until she addressed her own mental health issues, and, when DCF arranged for the child’s therapist to provide such services to Mother, she specifically declined.
  2. The Court here declined to address Mother’s unpreserved claim that the trial court erred in finding that DCF was not required to make reasonable efforts to reunify pursuant to statute (§ 17a-111b (a) (2)), which she claimed was unconstitutional, as this Court concluded that the trial court properly found that DCF had made reasonable efforts to reunify. Connecticut courts follow the basic judicial duty to avoid unnecessary determinations of constitutional questions.
  3. Mother could not prevail on her claim that the evidence was insufficient to support the trial court’s finding that she had failed to reach the requisite degree of rehabilitation to assume a responsible position in the child’s life.
  4. Although the court made findings that Mother had successfully addressed housing, employment, and mental health issues regarding her ability to care for the child, additional evidence, including testimony from the child’s therapist about Mother’s limited involvement and participation in the child’s treatment, and her shortcomings in addressing the child’s attachment issues, supported the court’s subordinate findings.
  5. Mother’s claim that the trial court was precluded from finding that she had failed to achieve the requisite degree of personal rehabilitation because DCF’s conduct in threatening to remove her subsequent child if she returned to Connecticut amounted to improper interference with her ability to maintain a relationship with the child was unavailing. Even assuming, arguendo, that the exception preventing DCF from terminating parental rights on the basis of no ongoing parent-child relationship when DCF engaged in conduct that caused the lack of relationship, the exception was inapplicable under the facts of this case because DCF’s social worker’s statements were not threats but simply honest responses to Mother’s queries. The information known to DCF at the time suggested legitimate child-protection issues, and, although at one time a DCF employee told Mother that removal was a realistic possibility, DCF later determined that that child was safe in her care and indicated that it would not attempt to remove him.  Moreover, Mother’s lack of in-person visits and inability to meet the child’s particularized needs were exhibited well before DCF indicated to Mother that it would possibly remove the subsequent child from her care if she returned to Connecticut.
  6. Mother could not prevail on her unpreserved claim that the court violated her due process rights by asking the child’s attorney to call a witness at trial after she and DCF had rested their cases. Mother’s counsel engaged in conduct clearly demonstrating agreement and assent to the court’s conduct, as counsel did not object when the court requested child’s attorney seek a witness to provide additional testimony. Counsel not only declined the court’s invitation to withdraw its request, but actively participated in setting the parameters for the inquiry, thoroughly cross-examined the witness and made the strategic decision to call the witness as his own.  As such, Mother waived her due process claim pursuant to State v. Golding (213 Conn. 233).