In Re Melody L.
Full Opinion (html_with_citations)
Opinion
These three appeals arise from the termination of the parental rights of the respondent mother, Neri C.,
The record reveals the following facts, as found by the trial court, and relevant procedural history. In May, 2002, the department of children and families (department) received an anonymous telephone call reporting that the respondent, the respondentās boyfriend (boyfriend) and her six
The department thereafter conducted a home visit and began an investigation. Through its investigation, the department learned that the respondent and her boyfriend had a history of substance abuse and that the respondent had relapsed. The department also became aware that the respondent had an active case with the
In December, 2002, the department received a telephone call reporting that Jenira had informed her foster mother that the boyfriend had touched her inappropriately while she was taking a bath dining a supervised visit with the respondent. The report of sexual abuse was confirmed during the departmentās interview with Jenira. The respondent admitted that she was still cohabiting with the boyfriend at that time, explaining that she needed his assistance during her pregnancy with Neri Jasmin. The boyfriend drove the respondent to the hospital for the birth of Neri Jasmin, who was bom on January 25, 2003.
In February, 2003, the department received a telephone call reporting that Melinda had informed her
The department interviewed Melody on two occasions in February, 2003. Melody stated that the respondent and her boyfriend had engaged in substance abuse in front of the children when they lived in New York and that they had allowed the oldest child, Malcolm; see footnote 2 of this opinion; to smoke marijuana in the home. Melody also reported multiple prior incidents of sexual abuse by the boyfriend.
As a result of these disclosures, the department referred Melody to the Aetna Childrenās Center at Saint Francis Hospital and Medical Center (hospital). During an interview at the hospital, at which a department employee was present, Melody disclosed multiple incidents of sexual abuse by the boyfriend, including penetration and oral sex. Melody further reported that the respondent and the boyfriend would have sexual relations in her presence. Melody also reported that the boyfriend would instruct her teenage brother Marcus; see footnote 2 of this opinion; to āhump herā and put
The department interviewed Marcus, who confirmed Melodyās reports of sexual abuse. He informed a department employee that the respondent and the boyfriend would have sexual intercourse in the presence of the children and that the boyfriend would talk to him about sex. He also confirmed that the boyfriend would make him get into the bathtub with Melody and direct him to put his penis on her vagina, while the boyfriend watched.
Throughout this period of time from May, 2002, and continuing well into 2005, the departmentās goal was to reunify the respondent with her children. She regularly visited with the children, who were generally doing well in their foster homes, and she and the children were being provided services intended to assist in the reunification of the family. In April, 2005, Marcus, who had significant behavior problems and previously had been removed by the department from the respondentās home, returned to live with the respondent. In July of that same year, Jaime returned to the respondentās home to live. The respondent thereafter became overwhelmed with her parental responsibilities for Marcus and Jaime at home. She hit one of the boys twice; she allowed Marcusā health insurance to lapse; she failed to pick up prescription medicine for Marcus and he suffered a seizure as a result; and she left Jaime and the other children, when visiting, in Marcusā supervision despite having been warned not to do so. Marcus also frightened the other children by tormenting the family cat in front of them. In December, 2005, Marcus and Jaime again were removed from the respondentās custody. During December, 2005, and January, 2006, the respondent refused to take a test to determine whether
In January, 2006, pursuant to General Statutes § 17a-112 Q),
After a lengthy trial, the trial court granted the petitions for termination. In its memorandum of decision, the trial court first determined that āprior to filing its
I
THE RESPONDENTāS APPEAL
The respondent appeals from the judgment of the trial court terminating her parental rights to the five children. On appeal, she claims that: (1) the trial court improperly found that the department had made reasonable efforts to reunite her with her children; (2) the trial court improperly found that she had failed to rehabilitate herself; and (3) the termination of her parental rights violated her rights under the state and federal constitution.
The respondent first claims that the trial court improperly found that the department had made reasonable efforts to reunify her with her children. More specifically, she asserts that the trial court improperly found that the department had made reasonable efforts to reunify her with her children because the department did not provide the respondent and her children with joint or family therapy. In response, the department asserts that there was sufficient evidence for the trial court to determine that the department had made reasonable efforts to reunify the respondent with her children, and that the department had provided family therapy where appropriate. We agree with the department.
We begin by setting forth the standard of review for this claim. āIn order to terminate parental rights under § 17a-112 0), the department is required to prove, by clear and convincing evidence, that it has made reasonable efforts ... to reunify the child with the parent, unless the court finds . . . that the parent is unable or unwilling to benefit from reunification .... General Statutes § 17a-112 (j) (1). The standard for reviewing reasonable efforts has been well established by the Appellate Court. Turning to the statutory scheme encompassing the termination of the parental rights of a child committed to the department, [§ 17a-112] imposes on the department the duty, inter alia, to make reasonable efforts to reunite the child or children with the parents. The word reasonable is the linchpin on which the departmentās efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof. Neither the word reasonable nor the word efforts is, however, defined by our legislature or by the federal act from which the requirement was drawn. . . . [Reasonable efforts means doing everything reasonable, not everything possible.
After a careful review of the record, we conclude that there was adequate evidence supporting the trial courtās finding that the department had made reasonable efforts to reunify the family. After the four older children were placed in the departmentās custody in May, 2002, and the youngest child was placed in February, 2003, the department offered to the respondent numerous services and programs to aid in their reunification. The trial court found that these services and programs included: a program for nonoffending partner parenting and understanding sexual abuse issues; substance abuse evaluation and treatment; individual and group therapy; random urine screening; a child parenting program; court-ordered evaluations; family therapy; supervised and unsupervised visitation; transportation for the respondent and the children; assistance in
The respondent nevertheless asserts that the department did not make reasonable efforts for reunification because it did not provide group or family therapy for her and the children. The evidence in the record, however, supports the trial courtās finding that the department provided group therapy for the respondent and her children, where appropriate. The department provided family therapy for the respondent and Jaime, which began in June, 2005, and continued throughout his reunification with the respondent. The respondentās family therapy with Jaime continued until December, 2005, when Jaime was removed from her care after the attempted reunification failed. In July, 2005, the department began providing family therapy for the respondent and Melinda. This therapy continued until September, 2005. The department also provided family therapy for the respondent and Jenira beginning in August, 2005.
In her brief, the respondent specifically asserts that the department did not make reasonable efforts at reunification because it did not provide family therapy for her and Melody. The evidence in the record, however, belies this claim. Melody received individual therapy and her personal therapist did not recommend joint therapy until the fall of 2005. When the department
We conclude that the trial courtās finding that the department made reasonable efforts at reunification was not clearly erroneous. Even if the evidence had established that additional family therapy might have been beneficial, such evidence does not render the trial courtās finding clearly erroneous. As we previously have noted herein, ā [reasonable efforts means doing everything reasonable, not everything possible.ā (Internal quotation marks omitted.) In re Destiny D., 86 Conn. App. 77, 82, 859 A.2d 973, cert. denied, 272 Conn. 911, 863 A.2d 702 (2004). The Appellate Court properly has affirmed findings that the department made reasonable efforts for reunification in cases in which the departmentās efforts were far less comprehensive than those in the present case. See In re Alexander T., 81 Conn. App. 668, 673, 841 A.2d 274 (ā[i]n light of the entire record, the failure to provide the referral, while a lapse, does not make the overall efforts of the department fall below the level of what is reasonableā), cert. denied, 268 Conn. 924, 848 A.2d 472 (2004); In re Ebony K, 68 Conn. App. 342, 350, 789 A.2d 1158 (2002) (ā[notwithstanding the courtās finding that the departmentās response to the [respondent motherās] request for assistance in obtaining housing was shameful and unacceptable, our review of the evidence admitted at the trial does not leave us with a definite and firm conviction that the court mistakenly found that the department had made reasonable efforts to reunify the respondent and the childā).
The respondent also claims that there was insufficient evidence supporting the trial courtās finding that she had failed to achieve sufficient personal rehabilitation pursuant to § 17a-112 Q) (3) (B) (ii). Specifically, the respondent claims that her compliance with the specific steps ordered by the court at the commitment proceedings for the children demonstrates that she achieved sufficient personal rehabilitation to allow her to assume a responsible position in her childrenās lives. We disagree.
We first turn to the standard of review that governs this claim. āA trial courtās finding that a parent has failed to achieve sufficient rehabilitation will not be overturned unless it is clearly erroneous. ... 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. . . .
āOn appeal, our function is to determine whether the trial courtās conclusion was factually supported and legally correct. ... In doing so, however, [g]reat weight is given to the judgment of the trial court because of [the courtās] opportunity to observe the parties and the evidence. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. . . . [Rather] every reasonable presumption is made in favor of the trial courtās ruling.ā (Citations omitted; internal quotation marks omitted.) In re Samantha C., supra, 268 Conn. 627-28.
āIn order to terminate a parentās parental rights under § 17a-112, the petitioner is required to prove, by clear and convincing evidence, that: (1) the department has made reasonable efforts to reunify the family; General Statutes § 17a-112 (j) (1); (2) termination is in the best
In the present case, the department alleged in its petition that the respondent had failed to achieve sufficient rehabilitation pursuant to § 17a-112 (j) (3) (B) (ii). That statute provides for the termination of a child where the child āis found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months 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 . . . .ā General Statutes § 17a-112 (]) (3) (B) (ii).
We previously have concluded that, ā[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 [parentās] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time. . . . The statute does not require [a parent] to prove precisely when she will be able to assume a responsible position in her childās life. Nor does it require her to prove that she will be able to assume full responsibility for her child, unaided by available support systems. It requires the court to find, by clear and convincing evidence, that the level of rehabilitation she has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date she can assume a responsible position in her childās life.ā
Our careful review of the record in the present case reveals that the evidence credited by the trial court adequately supported its finding that the respondent had failed to achieve sufficient rehabilitation. First, contrary to the respondentās allegations, the evidence supports the trial courtās finding that the plaintiff had not complied with all of the specific steps ordered by the court. Specifically, the trial court found that although the respondent did participate in individual therapy, she had failed to make progress toward the identified treatment goals. The trial courtās finding was based on a report by the respondentās therapist in December, 2005, that the respondent ācontinued to use poor judgment and her disorganization was troubling.ā The therapist further reported that the respondent would not be able to keep the younger children safe while Marcus was in the home because of his aggressiveness and bullying. The trial court further concluded that the respondent did not demonstrate that she had complied with the requirement to ā[sjecure and/or maintain adequate housing and legal incomeā because the evidence at trial demonstrated that she had not obtained full-time employment sufficient to support the children if they were returned to her. She had exhausted her benefits from the department of social services and could not show how she would be able to support herself and the children. The trial court further found that the respondent did not comply with the substance abuse testing requirements and the requirement that she not engage in substance abuse. These findings are supported by the evidence in the record.
āIn 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
In the present case, the trial court found that because the respondent ādid not actually acknowledge and accept her personal responsibility to prevent such horrific sexual acts committed by her boyfriend against [her] children, [she] has been unable to take the steps necessary for her rehabilitation to the point where she could be viewed as a viable resource for the protection and safety of her children, and thus as a viable parenting resource with whom the children could again reside permanently.ā The evidence presented at trial supports this finding.
The department presented testimony from Kelly Rogers, a licensed psychologist. Rogers had conducted five evaluations of the respondent and the minor children from March, 2003, through May, 2006. Rogers testified that the respondentās personality was that of āan individual with very limited frustration tolerance, prone to be impulsive, especially in an emotional sense, having propensity to develop dependent relationships that may alternate with long periods of . . . solitude and isolation.ā Rogers further testified that āwhile [the respondent] had been through a great deal of treatment and is able to articulate an understanding of the difficulties in her family system previously . . . she doesnāt address behavioral disturbances on the part of the children in a productive way and that, in my opinion, she is likely to have further impulsive responses to bad behavior from her children; that she may use excessive force or that she may respond in other exaggerated ways that are not productive; that, while there was little
In addition, in the report of the May, 2006 psychological evaluation completed by Rogers, which was introduced at trial, Rogers concluded that, ā[w]hile [the respondent] demonstrates the intellect and understanding necessary to effect productive changes, it is evident that she continues to demonstrate inadequate or inappropriate parenting when given the opportunity to have the children in her care. Such failures are evident despite more than adequate services and an appropriate level of participation in such services. . . . [T]here is little to suggest that the [respondent] will productively improve to the degree that she would consistently parent any of her children in a safe and psychologically healthy manner consistent with their best interests. . . . While she gives the appearance of adequate education in parenting skills, has the intellect to make reasonable decisions regarding their welfare, and has sufficient understanding for self-management, [the respondent] continues to accept little responsibility for the childrenās maltreatmentāat her hands and at the hands of her former partner. Whatever insight she has gained through education and treatment has not translated to consistency in responsible parenting, and the children are in need of permanency now.ā
The trial court credited Rogersā testimony and report, the accuracy of which was confirmed by what transpired after Marcus and Jaime were returned to the
Although the record reveals that the respondent was attached to her children, visited with them regularly, and attempted to, and did comply, with several specific steps, it also supports the trial courtās finding that she had not accepted responsibility for the earlier mistreatment of the children and had not rehabilitated adequately so as to be able to parent them safely. We therefore conclude that there was sufficient evidence in the record supporting the trial courtās finding that the respondent had not achieved a sufficient level of personal rehabilitation after almost four years to encourage the belief that she could parent her children safely.
C
The respondent also claims that the trial courtās termination of her parental rights violated her rights under
II
THE CHILDRENāS APPEAL FROM THE TERMINATION OF PARENTAL RIGHTS
We next turn to the appeal brought by Melody, Jenira, Jaime and Neri Jasmin (children)
A
Our appellate courts have not had the opportunity to determine specifically whether a child may properly appeal from the termination of the parental rights of his or her parent. Accordingly, the threshold issue in the childrenās appeal is whether the children have standing to bring this appeal.
We begin, therefore, with our well settled principles dictating the nature of that inquiry. āThe issue of stand
āStanding is established by showing that the party claiming it is authorized by statute to bring an action, in other words statutorily aggrieved, or is classically aggrieved. . . . The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action]. . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected.ā (Citations omitted; internal quotation marks omitted.) Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 368-70, 880 A.2d 138 (2005).
Although this court has not had the opportunity to decide whether a child may bring an appeal from the termination of the rights of his or her parent, we
We find this reasoning to be even more persuasive and directly applicable in the present case, for the issue in Wright, as in the present case, was whether the child had standing to appeal from the termination of her motherās parental rights. The rights of the children here are inextricably intertwined with those of the respondent. As we recognized in In re Christina M., supra, 280 Conn. 485, āboth the [parents] and the children have a mutual interest in the preservation of family integrity, and the termination of parental status is irretrievably destructive of that most fundamental family relationship.ā Accordingly, we conclude that the children have established standing to appeal from the judgments terminating the parental rights of the respondent.
On appeal, the children first claim that the trial court improperly admitted and relied on expert opinion testimony from Rogers. Specifically, the children claim that Rogers lacked the requisite expertise with sexual abuse to testify as an expert in the present case and that his testimony was based on insufficient information about the parties involved. In addition, the children also assert that the trial court improperly allowed Rogers to testify as to the ultimate issue in the case. In response, the department claims that the trial court properly admitted testimony from Rogers and did not abuse its discretion in relying on his testimony.
We first set forth the applicable standard of review. āThe applicable standard of review for evidentiary challenges is well established. Unless an evidentiary ruling involves a clear misconception of the law, the [t]rial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial courtās ruling on evi-dentiary matters will be overturned only upon a showing of a clear abuse of the courtās discretion. . . . We will make every reasonable presumption in favor of upholding the trial courtās ruling . . . .ā (Internal quotation marks omitted.) State v. Grant, 286 Conn. 499, 532, 944 A.2d 947 (2008).
In the present case, Rogers had conducted five evaluations of the respondent and the children from March, 2003, through May, 2006. At the time the commissioner petitioned for termination of the respondentās parental rights, the parties agreed that Rogers would conduct another evaluation and answer a series of questions, including, inter alia, ā[considering the age and needs of the children . . . whether the [respondent] can achieve such a degree of personal rehabilitation as would encourage the belief that, within a reasonable
At trial, the department introduced testimony from Rogers and sought to qualify him as an expert in the areas of clinical psychology, court-ordered evaluations in Juvenile Court and sexual abuse trauma. The respondent and the children objected to Rogersā qualification as an expert in the area of sexual abuse trauma, but did not object to his qualification as an expert in the other two areas. Indeed, the childrenās attorney acknowledged that Rogers, āobviously, has good qualifications as a clinical psychologist and as a court-ordered evaluator . . . .ā Thereafter, the trial court qualified Rogers as an expert in the areas of clinical psychology and court-ordered evaluations in Juvenile Court and denied without prejudice the departmentās motion to qualify him in the area of sexual abuse trauma, indicating that the parties might not āget to any issue involving expertise in that area.ā
Rogers thereafter testified as to the results of his evaluation, including his opinion that the respondent had not rehabilitated herself sufficiently to be able to assume a responsible position in the lives of the children. In its memorandum of decision, the trial court credited Rogersā testimony and his report of the May, 2006 evaluation, which was also admitted into evidence, wherein he concluded that the respondent had failed to achieve sufficient personal rehabilitation.
On appeal, the children first claim that the trial courtās admission of testimony and documentary evidence from Rogers was improper because he was not qualified as an expert in sexual abuse trauma and did not spend an adequate amount of time with the family. We disagree. As we explained previously herein, Rogers was appointed by the court to conduct evaluations of the family on five separate occasions during the relevant
At trial, the court acted consistent with the childrenās objection and did not qualify Rogers as an expert in the field of sexual abuse trauma. The children do not point to, and we cannot find, any instance in which Rogersā testified as to issues specifically related to sexual abuse. Instead, Rogers testified as to the findings of his evaluations, an area in which the court had properly recognized him as an expert without objection from the respondent or the children.
The children further claim that the trial court improperly allowed Rogers to testify as to the ultimate issue in the case, namely, whether the respondent had achieved sufficient personal rehabilitation or if more time or services would allow her to assume a responsible position in the lives of the children if they were to return home. The children claim that such expert testimony was improper because it called for legal conclusions and was not necessary to help or to inform the court. In response, the department asserts that Rogersā testimony as to the ultimate issue in the case was consistent with § 7-3 (a) of the Connecticut Code of Evidence and common practice in Juvenile Court proceedings. Furthermore, the department also asserts that, in the
This court repeatedly has held that, ā[e]xperts can . . . sometimes give an opinion on an ultimate issue where the trier, in order to make intelligent findings, needs expert assistance on the precise question on which it must pass.ā (Internal quotation marks omitted.) State v. Vilalastra, 207 Conn. 35,41, 540 A.2d 42 (1988), cert. denied, 349 U.S. 926, 75 S. Ct. 775, 99 L. Ed. 1257 (1955). This understanding has been codified in § 7-3 (a) of the Connecticut Code of Evidence, which provides in relevant part that ā[tjestimony in the form of an opinion is inadmissible if it embraces an ultimate issue to be decided by the trier of fact, except that ... an expert witness may give an opinion that embraces an ultimate issue where the trier of fact needs expert assistance in deciding the issue.ā
As the Appellate Court aptly has recognized, ā[t]he trial courtās exercise of discretion in admitting expert testimony is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law. . . . Furthermore, [c]ourts are entitled to give great weight to professionals in parental termination cases.ā (Citation omitted; internal quotation marks omitted.) In re Tabitha P., 39 Conn. App. 353, 364-65 n.8, 664 A.2d 1168 (1995); id. (concluding that trial court had not abused its discretion in admitting into evidence testimony of court-appointed evaluatorās conclusions where there was no evidence that court failed to consider any other evidence in rendering its decision).
In the present case, the parties agreed in the order for evaluation that Rogers should evaluate and make a finding as to whether the respondent had achieved sufficient personal rehabilitation, presumably because
C
The children also claim that the trial court improperly determined that the termination of the parental rights of the respondent was in the best interests of Melody and Jaime.
We first set forth the applicable standard of review. āThe legal framework for deciding termination petitions is well established. [A] hearing on a petition to terminate parental rights consists of two phases: the adjudicatory phase and the dispositional phase. During the adjudica-toiy 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. ... If the trial court determines that a statutory ground for termination exists, then it proceeds to the dispositional phase. During the disposi-tional 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.ā (Citations omitted; internal quotation marks omitted.) In re Davonta V., 285 Conn. 483, 487-88, 940 A.2d 733 (2008).
āIt is axiomatic that a trial courtās factual findings are accorded great deference. Accordingly, an appellate tribunal will not disturb a trial courtās finding that termination of parental rights is in a childās best interest unless that finding is clearly erroneous. ... 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. . . .
āOn appeal, our function is to determine whether the trial courtās conclusion was factually supported and legally correct. ... In doing so, however, [gjreat weight is given to the judgment of the trial court because of [the courtās] opportunity to observe the parties and
The children assert that the trial court improperly found that the termination of the parental rights of the respondent was in the best interests of Melody and Jaime because the evidence established that those children shared a bond with the respondent. āOur courts consistently have held that even when there is a finding of a bond between parent and a child, it still may be in the childās best interest to terminate parental rights.ā In re Rachel J., 97 Conn. App. 748, 761, 905 A.2d 1271, cert. denied, 280 Conn. 941, 912 A.2d 476 (2006); see also In re Tyqwane V., 85 Conn. App. 528, 536, 857 A.2d 963 (2004) (āThe Appellate Court has concluded that a termination of parental rights is appropriate in circumstances where the children are bonded with their parent if it is in the best interest of the child to do so. . . . This is such a case.ā [Internal quotation marks omitted.]); In re Ashley S., 61 Conn. App. 658, 667, 769 A.2d 718 (ā[A] parentās love and biological connection ... is simply not enough. [The department] has demonstrated by clear and convincing evidence that [the respondent] cannot be a competent parent to these children because she cannot provide them a nurturing, safe and structured environment.ā), cert. denied, 255 Conn. 950, 769 A.2d 61 (2001). In the present case, on the basis of our careful review of the record, we conclude that the trial courtās finding that termination of the respondentās parental rights was in the best interests of Melody and Jaime was not clearly erroneous.
At trial, the department introduced an evaluation report prepared by Rogers in May, 2006. In this report, Rogers stated that Melody did not display evidence of
The evidence further established that Melody, who had been the victim of substantial sexual abuse by the respondentās boyfriend, had negative feelings toward the respondent and that she was afraid of returning to the respondentās custody. Melodyās foster mother testified at trial that Melody had told her on several occasions that āsheās afraid of going with [the respondent] because sheās afraid that whatever happened to her before, if [the respondent] did not believe her, what makes her think [the respondent] will believe her now. And also that [the respondent] had moved from [the home she shared with the boyfriend] but only two blocks away.ā The testimony at trial also demonstrated that Melody still remained fearful that the boyfriend would return, and began screaming and crying on at least one occasion when she saw a man who resembled him. The foster mother further testified that Melody did not ask for the respondent or talk about her between visits.
The trial court also relied on Rogersā report of his consultation with Ellen Pharr, the coordinator of the safe home program in which Melody had recently stayed before being placed in a foster home and who served as Melodyās individual therapist. Pharr reported that Melody shared little about her biological family and spoke of missing her previous foster mother, but made no mention of the respondent. Pharr also reported that she ānever had the impression that [Melody] had a
In his May, 2006 report, which was introduced as a full exhibit at trial, Rogers opined that Jaime also did not display evidence of an ongoing parent-child relationship with the respondent, but had āpositive sentiments regarding [the respondent] ... as a component of their ongoing visitation . . . .ā Moreover, Rogers further indicated that āJaimeās age, placement apart from [the respondent] and limited contact with her do not support an ongoing mother/son relation.ā Rogers also reported that āJaime did not convincingly articulate his allegiances, but his emotional connection to [the respondent] was not compelling.ā
Moreover, the evidence at trial demonstrated that when Jaime was returned to the respondentās care for several months in 2005, the respondent became overwhelmed, physically abused her older child Marcus and left Jaime in Marcusā supervision against the departmentās clear instructions, refused to comply with the departmentās request for drug testing, stopped seeing her psychiatrist and stopped taking her prescription medications. As a result, the department had to halt Jaimeās reunification with the respondent and remove him from her care once again. Accordingly, on the basis of all this evidence, we cannot conclude that the trial courtās determination that termination of the parental rights of the respondent was in the best interests of Jaime was clearly erroneous.
Neri Jasmin claims on appeal that the termination of the respondentās parental rights without a jury trial violated the state constitutional rights of both the respondent and Neri Jasmin. The state correctly points out, and Neri Jasmin seems to concede in her brief, that she failed to raise her constitutional claim in the trial court.
As we acknowledged previously herein, a party may prevail on an unpreserved constitutional claim pursuant to State v. Golding, supra, 213 Conn. 239-40, āif the party affirmatively requests and adequately briefs [her] entitlement to Golding review.ā Lebron v. Commissioner of Correction, 274 Conn. 507, 532, 876 A.2d 1178 (2005); see also State v. Waz, 240 Conn. 365, 371 n.11, 692 A.2d 1217 (1997) (party āwho seek[s] consideration of unpreserved constitutional claims [on appeal] . . . bearfs] the burden of establishing their entitlement to such review under the guidelines enumerated in Goldingā).
In the present case, Neri Jasmin claims that her constitutional claim is subject to Golding review, but fails in her brief to provide any analysis of her claim under the four-pronged Golding test. To the contrary, Neri Jasmin merely asserts in one sentence that her claim is subject to Golding review without providing any analysis of the four prongs. See Lebron v. Commissioner of Correction, supra, 274 Conn. 532. We conclude therefore, that Neri Jasmin has failed to establish her entitlement to Golding review of her constitutional claim.
Moreover, we note that Neri Jasmin has failed to provide an independent analysis of her state constitutional claim under State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992). āWe have repeatedly apprised litigants that we will not entertain a state constitutional claim unless the defendant has provided an independent
Ill
THE CHILDRENāS APPEAL FROM THE DENIAL OF THE MOTION FOR VISITATION
The children also appeal from the trial courtās order denying their motion for visitation with the respondent pending these appeals. The children contend that the trial court improperly concluded that there were constitutional implications to the childrenās motion for visitation and failed to apply properly the best interests of the child standard in denying the childrenās motion. The department responds that the trial court properly denied the motion for visitation because it properly determined that such visitation was not in the best interests of the children. Furthermore, at oral argument in this court, the department asserted that this appeal would be rendered moot if this court were to affirm the trial courtās termination of the respondentās parental rights because the children were seeking visitation only during the pendency of these appeals. We agree with the department that the outcome of the other appeals renders this appeal moot, and, accordingly, we dismiss this appeal as moot.
The following additional facts and procedural history are relevant to our resolution of this appeal. After the trial court rendered the judgments terminating the parental rights of the respondent, the respondent and the children filed nptices of appeal. Shortly thereafter, the children filed two motions with the trial court. In one motion, the children moved to continue regular
Because mootness implicates the subject matter jurisdiction of this court, we first address whether our resolution of the other appeals relating to the merits of the termination of the parental rights of the respondent renders this appeal moot. āMootness is a question of justiciability that must be determined as a threshold matter because it implicates [this] courtās subject matter jurisdiction .... We begin with the four part test for justiciability established in State v. Nardini, 187 Conn. 109, 445 A.2d 304 (1982). . . . Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ... (2) that the interests of the parties be adverse ... (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complain
ā[A]n actual controversy must exist not only at the time the appeal is taken, but also throughout the pen-dency of the appeal. . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.ā (Internal quotation marks omitted.) Id., 374.
In the present case, the children appeal from the trial courtās order denying their motion to continue visitation with the respondent pending the appeals from the termination of the respondentās parental rights. We have now concluded that the trial courtās judgments terminating those rights should be affirmed. These appeals therefore are at an end and we can grant no practical relief to the children in their appeal from the denial of visitation. In their motion, the children sought continued visitation while the two appeals were pending. Our resolution of those appeals, therefore, makes it impossible to grant the children the relief they sought.
We recognize that āan otherwise moot question may qualify for review under the capable of repetition, yet evading review exception [to the mootness doctrine]. To do so, however, it must meet three requirements. First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act
In the present case, we acknowledge that it is possible for an appeal from a motion for continued visitation pending appeal to be decided along with any appeals from the termination judgment in the majority of cases. We are, however, unpersuaded that this possibility makes it likely that āthe substantial majority of casesā raising a question about continued visitation pending appeal will evade review. Sweeney v. Sweeney, 271 Conn. 193, 201-202, 856 A.2d 997 (2004). To the contrary, as the children did in this appeal, any child seeking continued visitation pending appeal may seek a motion for stay of the termination pursuant to Practice Book § 61-12. If the motion is denied, a child may seek to have that denial reviewed by filing a motion for review pursuant to Practice Book § 66-6,
The judgments of the trial court terminating the parental rights of the respondent as to the children are affirmed; the appeal from the order of the trial court denying the childrenās motion for visitation is dismissed as moot.
In this opinion ROGERS, C. J., and NORCOTT and ZARELLA, Js., concurred.
Default judgments were rendered against the fathers of the five minor children, and they have not appealed. We refer in this opinion to the mother as the respondent.
The respondent has a total of seven children. Her two oldest sons, Malcolm and Marcus, are not involved in these appeals but are mentioned in various discussions of the facts in this opinion.
We note that one of the minor children, Melinda, originally was an appellant in the childrenās two appeals (SC 18085 and SC 18087), but subsequently withdrew from both. She subsequently filed briefs as an appellee in the two appeals pertaining to the termination of the respondentās parental rights seeking to affirm the trial courtās judgments.
The respondent and the children appealed from the judgments of the trial court to the Appellate Court, and we transferred the appeals to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.
The respondentās youngest child, Neri Jasmin, had not been bom at the time the department received the telephone call. She was bom in January, 2003.
General Statutes § 17a-101g provides in relevant part: ā(e) If the Commissioner of Children and Families, or the commissionerās designee, has probable cause to believe that the child or any other child in the household is in imminent risk of physical harm from the childās surroundings and that immediate removal from such surroundings is necessary to ensure the childās safety, the commissioner, or the commissionerās designee, shall authorize any employee of the department or any law enforcement officer to remove the child and any other child similarly situated from such surroundings without the consent of the childās parent or guardian. The commissioner shall record in writing the reasons for such removal and include such record with the report of the investigation conducted under subsection (b) of this section.
ā(f) The removal of a child pursuant to subsection (e) of this section shall not exceed ninety-six hours. During the period of such removal, the commissioner, or the commissionerās designee, shall provide the child with all necessary care, including medical care, which may include an examination by a physician or mental health professional with or without the consent of the childās parents, guardian or other person responsible for the childās care, provided reasonable attempts have been made to obtain consent of the childās parents or guardian or other person responsible for the care of such child. During the course of a medical examination, a physician may perform diagnostic tests and procedures necessary for the detection of child abuse or neglect. If the child is not returned home within such ninety-six-hour period, with or without protective services, the department shall proceed in accordance with section 46b-129.ā
General Statutes § 17a-112 Q) provides: āThe Superior Court, upon notice and hearing as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear- and convincing evidence that (1) the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent in accordance with subsection (a) of section 17a-lllb, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts, except that such finding is not required if the court has determined at a hearing pursuant to section 17a-lllb, or determines at trial on the petition, that such efforts are not required, (2) termination is in the best interest of the child, and (3) (A) the child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child; (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, or (ii) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months 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; (C) the child has been denied, by reason of an act or acts of parental commission or omission including, but not limited to, sexual molestation or exploitation, severe physical abuse or a pattern of abuse, the care, guidance or control necessary for the childās physical, educational, moral or emotional well-being, except that nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights; (D) there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day-to-day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child; (E) the parent of a child under the age of seven years who is neglected or uncared for, has failed, is unable or is unwilling to achieve such degree of personal rehabilitation as would encourage the belief that within a reason
Section 17a-112 Q) was amended by No. 06-102, § 7, of the 2006 Public Acts, which made several technical changes to the statute that are not relevant to this appeal. For purposes of clarity, we refer to the present revision of the statute.
The department also petitioned for the termination of the parental rights of the childrenās fathers. See footnote 1 of this opinion.
The respondent further claims that the trial court improperly found that the children, other than Neri Jasmin, had been denied the care, guidance or control necessary for each childās physical, educational, moral or emotional well-being by reason of the respondentās acts of commission or omission. Because we conclude that the evidence was sufficient to support the trial courtās finding that the respondent had failed to achieve sufficient personal rehabilitation pursuant to § 17a-112 (j) (3) (B) (ii), we do not reach this claim by the respondent. See In re Eden F., 250 Conn. 674, 688, 741 A.2d 873 (1999) (ā[d]uring the adjudicatory phase, the trial court must determine whether one or more of the four grounds for termination of parental rights set forth in § 17a-112 [b] exists by clear and convincing evidenceā).
The respondent invokes both the federal and state constitutions in support of her claim. She has failed, however, to provide us with an independent analysis of her claim under the state constitution. āWe have repeatedly apprised litigants that we will not entertain a state constitutional claim unless the defendant has provided an independent analysis under the particular provisions of the state constitution at issue.ā (Internal quotation marks omitted.) State v. Canales, 281 Conn. 572, 592 n.12, 916 A.2d 767 (2007).
See footnote 3 of this opinion.
The children also claim that there was insufficient evidence to support the trial courtās findings that the respondent had failed to achieve sufficient personal rehabilitation pursuant to § 17a-112 (j) (3) (B) (ii) and that Melody, Melinda, Jenira and Jaime had been denied the care, guidance or control necessary for each childās physical, educational, moral or emotional well-being by reason of the respondentās acts oĆ commission or omission. Because these two claims are identical to claims made by the respondent in her appeal, our consideration and resolution of the respondentās claims in part I of this opinion are dispositive of the childrenās identical claims. It would serve no useful purpose to repeal our discussion or analysis here.
Although Jenira and Neri Jasmin stipulated to and joined the brief of Melody and Jaime, that brief asserts only that the trial court improperly determined that the termination of the respondentās parental rights was in the best interests of Melody and Jaime; it does not address the best interests of Jenira or Neri Jasmin. Moreover, in her brief, Neri Jasmin asserted that if the aijjudicatory determinations of the trial court were affirmed, the termination of the respondentās parental rights was in the best interests of Neri Jasmin. We therefore do not address whether the trial court properly determined that termination was in the best interests of Jenira or Neri Jasmin.
The children also claim that the trial court improperly failed to consider and make the requisite findings as to Melody and Jaimeās wishes. In its memorandum of decision, the trial court did make the requisite findings regarding Melody and Jaimeās wishes, a fact that the children seem to acknowledge in their briefs. We therefore interpret the childrenās argument to be that the trial court should have given Melody and Jaimeās wishes more weight in its determination. We disagree with that claim. Accordingly, we conclude that the trial court properly considered the wishes of Melody and Jaime.
General Statutes § 17a-10a provides in relevant part,: ā(a) The Commissioner of Children and Families shall ensure that a child placed in the care and custody of the commissioner pursuant to an order of temporary custody or an order of commitment is provided visitation with such childās parents and siblings, unless otherwise ordered by the court.
ā(b) The commissioner shall ensure that such childās visits with his or her parents shall occur as frequently as reasonably possible, based upon consideration of the best interests of the child, including the age and developmental level of the child, and shall be sufficient in number and duration to ensure continuation of the relationship. . . .
ā(d) The commissioner shall include in each childās plan of treatment information relating to the factors considered in making visitation determinations pursuant to this section. If the commissioner determines that such visits are not in the best interests of the child or that the number, frequency or duration of the visits requested by the childās attorney or guardian ad litem is not in the best interests of the child, the commissioner shall include the reasons for such determination in the childās plan of treatment.ā
General Statutes § 46b-59 provides: āThe Superior Court may grant the right of visitation with respect to any minor child or children to any person, upon an application of such person. Such order shall be according to the courtās best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable, provided the grant of such visitation rights shall not be contingent upon any order of financial support by the court. In making, modifying or terminating such an order, the court shall be guided by the best interest of the child, giving consideration to the wishes of such child if he is of sufficient age and capable of forming an intelligent opinion. Visitation rights granted in accordance with this section shall not be deemed to have created parental rights in the person or persons to whom such visitation rights are granted. The grant of such visitation rights shall not prevent any court of competent jurisdiction from thereafter acting upon the custody of such child, the parental rights with respect to such child or the adoption of such child and any such court may include in its decree an order terminating such visitation rights.ā
Practice Book § 61-12 provides: āIn noncriminal matters in which the automatic stay provisions of Section 61-11 are not applicable and in which there are no statutory stay provisions, any motion for a stay of the judgment or order of the superior court pending appeal shall be made to the judge who tried the case unless that judge is unavailable, in which case the motion may be made to any judge of the superior court. Such a motion may also
āIn the absence of a motion filed under this section, the trial court may order, sua sponte, that proceedings to enforce or carry out the judgment or order be stayed until the time to take an appeal has expired or, if an appeal has been filed, until the final determination of the cause. A party may file a motion to terminate such a stay pursuant to Section 61-11.ā
Practice Book § 66-6 provides in relevant part: āThe court may, on written motion for review stating the grounds for the relief sought, modify or vacate any order made by the trial court under Section 66-1 (a); any action by the appellate clerk under Section 66-1 (c) (2); any order made by the trial court, or by the workersā compensation commissioner in cases arising under General Statutes § 31-290a (b), relating to the perfecting of the record for an appeal or the procedure of prosecuting or defending against an appeal; any order made by the trial court concerning a stay of execution