In re Jayce O. , 323 Conn. 690 ( 2016 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
IN RE JAYCE O.*
(SC 19669)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued September 15—officially released December 8, 2016**
Karen Oliver Damboise for the appellant (respon-
dent mother).
Benjamin Zivyon, assistant attorney general, with
whom were Evan O’Roark, assistant attorney general,
and, on the brief, George Jepsen, attorney general, and
Gregory T. D’Auria, solicitor general, for the appel-
lee (petitioner).
Sharon A. Peters, for the minor child.
Opinion
ESPINOSA, J. The respondent mother, Kaitlyn J.,
appeals from the judgment of the trial court terminating
her parental rights with respect to her minor child,
Jayce O.1 The respondent contends that her right to
due process under both the federal and state constitu-
tions was violated because the trial court relied in part,
pursuant to General Statutes (Supp. 2016) § 17a-112
(j) (3) (E),2 on the prior voluntary termination of her
parental rights with respect to another child when the
respondent was a minor (prior termination).
The respondent also contends that the trial court, in
its decision on the petition for termination of parental
rights filed by the petitioner, the Commissioner of Chil-
dren and Families: (1) improperly concluded that the
Department of Children and Families (department)
made reasonable efforts toward reunification; (2) failed
to make a finding that the respondent was unable or
unwilling to benefit from those reasonable efforts; and
(3) improperly found that the respondent had failed to
rehabilitate. We affirm the judgment of the trial court
and address each of the respondent’s claims in turn.
We begin with the factual findings of the trial court
as set forth in its carefully crafted and thorough memo-
randum of decision.3 At the time of trial, the respondent
was twenty-two years old. ‘‘Hers is the life story of a
child who fell between the cracks of two parents, too
young and immature to have a child themselves. [The
respondent] lived with her father after her parents’ sepa-
ration when she was three. When she was out of control
and using marijuana, her father would not deal with
her. She then went to live with her mother at age thir-
teen. She apparently was not closely supervised or given
proper structure or nurturing attention by either parent.
She was out of control, belligerent and unwilling to
follow normal parental guidelines. She recalls both par-
ents using drugs and [observed] drug activity when she
was quite young. . . . [A]t age fourteen, she became
pregnant herself. She followed early in the footsteps of
her neglectful parents, and the next events in her life
are all too common and to be expected when a child
gives birth to yet another child.
‘‘She came into [the care of the department] and her
parents’ rights to her were terminated. [The respondent]
was placed in a home with wraparound services, so
she could remain with her infant. Her daughter was
born in January, 2008, a few short months before her
own fifteenth birthday. To [the respondent’s] credit,
she remained in the home for [more than] a year. But
by July, 2009, stability ended for [the respondent]. [She]
ran away from her placement, [and] an order of tempo-
rary custody was granted. Her daughter was adjudi-
cated neglected and on November 18, 2010, [the
respondent] consented to the termination of her rights
to this child when she herself was just seventeen. Her
daughter was adopted by her paternal grandmother and
she continued to have some contact with her for a time.
[The respondent] remained in [the department’s] care
until she signed herself out at age eighteen. As noted in
[the department’s] records at the time, [the respondent]
was resistant to treatment, engaged in substance abuse
and was unable to benefit from the mental health ser-
vices offered to her. Those same problems, unfortu-
nately for her, are still with her at present time, some
six years later.
‘‘After she left [the department’s] care, [the respon-
dent] began a relationship with [a] woman and the two
decided to have a child together. She reports she had
sex with Jayce’s father one time, for purposes of getting
pregnant and Jayce was the result. In 2013, she moved
with Jayce to California to be with her friend, and lived
with her and her family for about a year. The family
was not supportive of her and . . . a year later, in 2014,
she returned with Jayce, by herself, to Connecticut, and
lived for a short time with her paternal aunt and uncle.
‘‘She then planned to move into an apartment with
her father, and she did so, but her father never [moved
in] and [he] was not financially supportive. Due to [the
respondent’s] lack of education, she is only able [to]
secure employment without significant remuneration
and has had considerable difficulty in adequately sup-
porting herself. The efforts to maintain herself and her
child and [to] lead a stable and sober lifestyle were
overwhelming to her. She regularly smoked marijuana,
used other drugs and led a chaotic life, leaving Jayce
with different caretakers with criminal records and
child protection histories while she partied. There were
several [department] contacts with [the respondent]
and Jayce before the events [that] led to Jayce’s
removal.
‘‘On September 12, 2014, a day after the [department’s
social] worker had warned [the respondent] about going
to her substance abuse treatment and getting food for
Jayce, the [social] worker arrived at the home to find
that [the respondent] was out and Jayce had been left
with [her] girlfriend. [The respondent] and her friend
had had an argument the night before and her friend said
that she was concerned about Jayce as [the respondent]
was very abrasive to [Jayce]. There was also no food
in the home for Jayce. When [the respondent] returned
home, she was belligerent and angrily told the [social]
worker to get out of her apartment and her life. She
stated that she can ‘see whoever she wants’ and [the
department] cannot run her life.
‘‘An [order of temporary custody] was granted and
Jayce was initially placed in the home of a social worker
to whom [the respondent] had been close when she
herself was in [the department’s] care. Thereafter,
[Jayce] came into the care of his present foster parents.
He has remained in [their] care since September, 2014.’’
As for the services provided to the respondent and
her progress toward rehabilitation, the trial court made
the following findings. ‘‘Many services have been pro-
vided to [the respondent] by [the department] since
Jayce’s removal. Specific steps in this case were
ordered for her on September 16, 2014, and finalized
on January 23, 2015, when Jayce was adjudicated
neglected. [The respondent] has not been compliant
with these steps nor has she made any significant strides
in addressing her continued substance use and ongoing
mental health difficulties and medication needs. She
fundamentally refuses to believe, despite her assertions
to the contrary, that marijuana presents a problem for
her. Until recently, she has consistently denied the effi-
cacy of any medications to assist her with her deep-
seated mental health difficulties, including self-reported
daily panic attacks lasting [twenty] minutes or more
and significant anxiety.
‘‘[The respondent] has attended many of the services
offered to her, but has failed to engage in any meaning-
ful long-term way. She minimized her past trauma, and
has made little progress in trauma-focused therapy. She
remains poor at self-regulation, caring for herself emo-
tionally or dealing competently with financial or other
issues confronting her. She has attended and partici-
pated in drug recovery programs, parenting services,
as well as receiving both group and individual therapy
for her mental health difficulties for some consider-
able time.
‘‘The list of service providers and their struggles to
keep her engaged and complete the programs demon-
strates the reasonable services provided to her. Her
therapist and parent coach are clearly supportive of
her, but frustrated. She has secured section 8 housing,
which she disparages, but nonetheless allows her rea-
sonable accommodation[s], given her limited income.
Due to the slow progress being made in her counseling
sessions and her medication issues, intensive outpatient
services were at one point recommended for her. The
coordination of services for her remains a major
challenge.
‘‘[The respondent] has taken seriously her parent
coaching and her time with Jayce. She and he are affec-
tionate with each other and the child clearly has a
connection to her. He is happy to see her when they
are able to meet. But in many other respects, [the
respondent] continues to be dogged by the same diffi-
culties noted in her own . . . record [with the depart-
ment] when she was younger. She remains resistant to
treatment and change, she is easy to anger, belligerent,
and immature in her responses to any demands made
on her. She remains convinced she can self-medicate
her mental health and other difficulties with the use
of marijuana. Her inability to address her significant
underlying needs and problems [was] highlighted in the
psychological evaluation performed. . . .
‘‘The court-appointed evaluator noted in his testi-
mony that [he met with the respondent] in March,
August and September [of 2015]. She exhibited only a
mixed level of cooperation with the process. In March,
she was unwilling to stay the entire day, repeatedly
distracted and both irritable and irritated, and hostile.
She constantly permitted interruptions by focusing on
cell phone texts, despite instructions not to do so. She
could not concentrate and focus and gave other things
too much precedence. She was unwilling to respond to
and engage with the evaluation. She would not speak
with any level of openness about herself. It was appar-
ent that topics about past emotional injury to her contin-
ued to trouble her. She insisted on leaving early so
that she could attend a birthday party for her younger
girlfriend, forcing her [social] worker to transport
her early.
‘‘She was unwilling, the evaluator noted, to be forth-
coming about the nature of her relationship with her
girlfriend and much about her own inner life. She also
remained unable, at that time, to psychologically under-
stand why she was a risky parent for Jayce and that
she could and did jeopardize her child’s safety.
‘‘Nonetheless, given the seriousness of the [the
department’s] claims against her and the pending termi-
nation proceedings, as well as her son’s connection
to her, the evaluator reported that: ‘[The respondent]
relates very effectively to [Jayce]. He is delighted to
see her and is very responsive to her. The [respondent]
is able to read him well and to anticipate his behaviors
and manage them well. The [respondent] has the capac-
ity to develop her relationship with Jayce. In terms of
parenting ability alone, she probably has the capacity
to develop a satisfactory overall parenting capacity for
Jayce. Her danger most likely would come from other
areas of her life, including her relationship problems,
her distrust, her oppositional and defiant tendencies
and her clinical difficulties. She remains at risk for
substance abuse.’
‘‘[The evaluator] recommended that [the respondent]
receive an additional six months in which to rehabilitate
while Jayce remained in the foster home. He recom-
mended services that [the respondent] would need to
complete for reunification to progress. They included
substance abuse maintenance treatment, medical men-
tal health treatment to address her anxiety problems
and panic problems as well as to help her with her
irritability and anger, anger management treatment,
combined individual psychotherapy to address her psy-
chological challenges and underlying anger, distrust,
irritability and [post-traumatic stress disorder]
symptoms.
‘‘By early May, 2015, [the respondent] had been sober
for some time and it was expected that further reunifica-
tion services could begin. But testing and her own
admission revealed just at this crucial time in the deci-
sion-making concerning her ability to reunify with
Jayce, [the respondent] had again begun using drugs.
In addition, she became convinced that the medication
she was prescribed did not help her mood. She unilater-
ally stopped taking those medications. She did not dis-
cuss her decision with her medication providers or seek
different dosages for increased effectiveness.
‘‘In August and early September, the court-appointed
evaluator met with [the respondent] again. He spoke
with many of her treatment providers concerning her
progress. It is apparent in his report, that by late August
and early September, [the respondent] continued to
deny marijuana was a problem for her. She has main-
tained this stance, despite the fact that her reunification
efforts with Jayce were derailed by it. She is insistent
that it helps her with her anxiety and she does not see
why she cannot use it in that fashion.
‘‘[The respondent] again did not fully participate in
the evaluation process, and presented as before as irri-
table and defensive and using poor judgment, although
her mood improved as time went on. She did not believe
she needed medication for her anxiety, attention diffi-
culties and to stabilize her mood. She stated she went
[twenty-two] years without such drugs. ‘I am just under
stress and I can go another [twenty-two] years without
it too.’
‘‘At that point in time, given all her treatment provid-
ers’ reports about her very slow progress and with her
continued moody, irritable oppositional behavior, her
prognosis was not good. The evaluator stated that [the
respondent]: ‘meets some of the diagnostic criteria for
[p]ost-[t]raumatic [s]tress [d]isorder, [b]orderline [p]er-
sonality [d]isorder and [d]ysthymic [d]isorder . . . .
[The respondent] still has strong reservations about
the consumption of clinical services and the use of
medications to manage her turbulent and unpredictable
emotions. These attitudes can interfere with diagnostic
and treatment progress.’
‘‘[The evaluator] could not recommend reunification
and noted that [the respondent] needed an additional
[eight to twelve] months to establish an unbroken reha-
bilitation trajectory [that] has durability and a satisfac-
tory measure of reliability. He noted that it is less risky
for Jayce to have [the respondent’s] rights terminated
and be free for adoption than to postpone a permanency
decision so much longer. His testimony in court echoed
the same strong opinion.’’ (Footnotes omitted.)
The court summarized its findings regarding the
respondent’s progress, stating that ‘‘it is apparent that
[the respondent] has not progressed far, despite many
interventions, from the observations made about her
psychological status as a teenager in [the department’s]
care. She remains significantly resistant to clinical treat-
ment and medication to help with her intrusive anxiety
and regular panic attacks, to therapeutic interventions
requiring her to examine her emotions and to limiting
her use of marijuana, despite her own testimony to
the contrary about this. She is currently on medication
which she believes does give her relief and she wishes
she had received it earlier. Nonetheless, her anger and
irritability and mood continue to make her a very risky
parent for Jayce, despite her evident ability to connect
to him.
‘‘Her parent coach is more hopeful that [the respon-
dent] could do better with supports in place, although
the length of time for such rehabilitation was uncertain.
Unfortunately, given the totality of the evidence, the
court does not find this likely, given her demonstrated
and persistent resistance to such supports. How much
greater will be her opportunity to end such involvement
when the eyes of others and the court are no longer
on her? The court also concludes, from all of the clear
and convincing testimony and evidence in the record,
that [the respondent] is not in a position to care for
her young son either now or in the foreseeable future,
given Jayce’s age and needs for structure, nurturing and
permanency in his young life.’’
With respect to Jayce, the trial court made the follow-
ing additional findings. ‘‘Jayce will be three in Decem-
ber. He has been in foster care a little over one year.
. . . He remains attached to [the respondent] and
enjoys visiting with her. When he came into care, he
was in need of Birth to Three services as his speech
was significantly delayed. He also had significant delays
in his personal and social development as well as his
cognitive development. He knew only a very few words
and would point and grunt when he wanted something.
He often grew frustrated. The Birth to Three provider
noted the focus was on communication and very soon,
Jayce made great progress. She worked regularly with
the foster parents as well as with [the respondent] to
support this child. He now is on a more normal trajec-
tory and his cognitive and social skills are now in the
normal range. Nonetheless, he will receive services
through the end of his third year, to make sure his
progress is secure and solidified.
‘‘He is presently in nursery school and is doing well,
after he was transitioned to a second day care program
last school year. It is apparent that he needs significant
structure and predictability in his life. When there are
too many changes, he regresses and needs additional
help, as happened this summer when he was away on
vacation and then transitioned to nursery school. He is
now a happy outgoing child, who does well when he
has the support and structure he needs. He has done
well in his present home and, as noted, is happy to see
[the respondent] regularly as well.’’
In a subsequent articulation of its memorandum of
decision, the trial court clarified that, notwithstanding
its finding, pursuant to § 17a-112 (j) (1), that the depart-
ment had made reasonable efforts toward reunification,
the court also found, pursuant to the same subsection,
that the respondent was unable or unwilling to benefit
from those reasonable efforts.
I
DUE PROCESS
We first address the respondent’s claim that, by
grounding its judgment terminating her parental rights
with respect to Jayce, in part, on the prior termination
of her parental rights as to another child, the trial court
violated her right to procedural due process. Specifi-
cally, the respondent claims that reliance on the prior
termination, pursuant to § 17a-112 (j) (3) (E), was
improper because she was a minor at the time that she
consented, and she lacked notice that one consequence
of her consent would be that the petitioner might be
able subsequently to file coterminous petitions with
respect to another child. She also argues that consen-
sual terminations in general do not serve as a reliable
indicator of a lack of parental fitness, particularly when
too much time has elapsed between the prior termina-
tion and the present proceeding. We conclude that the
trial court’s reliance on the prior termination did not
violate the respondent’s right to procedural due
process.4
‘‘The fundamental requirement of due process is the
opportunity to be heard at a meaningful time and in a
meaningful manner. Mathews v. Eldridge, 424 U.S. 319,
333, [96 S. Ct. 893, 47 L. Ed. 2d 18] (1976) . . . . In
reviewing a procedural due process claim, we must
first determine whether a protected liberty or property
interest is involved. If it is, then we must determine the
nature and extent of the process due. . . .
‘‘A due process violation exists only when a claimant
is able to establish that he or she was denied a specific
procedural protection to which he or she was entitled.
The type and quantity of procedural protection that
must accompany a deprivation of a particular property
right or liberty interest is determined by a balancing
test, weighing: (1) the individual interest at stake; (2)
the risk of erroneous deprivation of the interest through
the procedures used and the probable value, if any, of
additional or substitute procedural safeguards; and (3)
the [s]tate’s interest in the procedures used, including
the fiscal and administrative burdens that any additional
or substitute procedures would entail.’’ (Citation omit-
ted; internal quotation marks omitted.) In re Tayler F.,
296 Conn. 524, 553–54, 995 A.2d 611 (2010).
interest—her right to parent her child—is a fundamen-
tal right, entitled to constitutional protection. Troxel v.
Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed.
2d 49 (2000) (observing that parents’ interest ‘‘in the
care, custody, and control of their children—is perhaps
the oldest of the fundamental liberty interests recog-
nized by [the United States Supreme] Court’’). We have
explained that ‘‘[u]nquestionably, these important
rights are severely threatened by the state’s initiation
of termination proceedings. Such proceedings may
result not only in the modification or limitation of paren-
tal rights, but may irrevocably sever the relationship
between parent and child. . . . This deprivation is
unique and complete. . . . Consequently, under the
first prong of the Mathews . . . test, the private inter-
est of a parent in a termination proceeding is consider-
able.’’ (Citations omitted.) In re Alexander V., 223 Conn.
557, 561, 613 A.2d 780 (1992).
The second prong of the Mathews test requires us to
consider, under the particular facts and circumstances
of the present case, whether and to what extent the
trial court’s consideration of the respondent’s prior ter-
mination gave rise to a risk of erroneous deprivation
of her parental rights, and the probable value of any
additional procedural safeguards. See Mathews v.
Eldridge, supra, 424 U.S. 335. Our review of the respon-
dent’s claims reveals that she has not demonstrated
that the consideration of that prior termination gave
rise to any risk of erroneous deprivation of her parental
rights. That is, in contrast to the respondent’s claims,
the record demonstrates that she was provided with
sufficient procedural safeguards to protect her funda-
mental right to parent her child, including sufficient
notice of proceedings, additional visitation time, and
the provision of numerous services to assist her with
rehabilitation. She was also provided with specific steps
and given an additional six months of time to rehabili-
tate, even though neither of these procedural protec-
tions is required by § 17a-112 (j) (3) (E). In short, as
we now set forth in detail, the respondent was provided
with more than adequate procedural safeguards to pro-
tect her fundamental right to parent and every effort
was made to assist her in rehabilitating sufficiently in
order to be reunified with her child.
We begin with the observation that a prior termina-
tion of parental rights, standing on its own, would be
insufficient to support the termination of parental rights
pursuant to § 17a-112 (j) (3) (E). In order to bear its
burden to demonstrate that a parent’s rights should
be terminated under that provision, the petitioner is
required to prove the following, by clear and convincing
evidence: (1) the department has made reasonable
efforts toward reunification, or the parent is unwilling
or unable to benefit from such efforts; (2) termination
is in the best interest of the child; and (3) the child is
under the age of seven years and is neglected or uncared
for, and the parent has failed, or is unable or unwilling
to achieve such degree of personal rehabilitation as
would encourage the belief that within a reasonable
period of time, considering the age and needs of the
child, the parent could assume a responsible position
in the life of the child, and the parent’s parental rights
with respect to another child were previously termi-
nated. General Statutes (Supp. 2016) § 17a-112 (j).
The petitioner’s failure to bear her burden as to any
single one of these elements will result in a denial of
the petition for termination of parental rights, even if
the petitioner proves all of the remaining elements by
clear and convincing evidence. Moreover, there is no
evidence in the record that the trial court considered
the respondent’s prior termination in holding the peti-
tioner to her proof on the remaining elements. To the
contrary, the trial court’s memorandum of decision
reflects that although the court held the petitioner to
her burden to prove the prior termination by clear and
convincing evidence, the primary focus of the court’s
inquiry was on determining whether the department
had provided the respondent with reasonable services
and whether she had rehabilitated. The court’s decision
further reflects that the court did not rely on the prior
termination to conclude that the respondent failed to
rehabilitate. Instead, in arriving at that conclusion, the
court evaluated only the evidence that was directly
relevant to the issue of whether the respondent had
rehabilitated.
Our review of the particular procedural protections
afforded to the respondent in the present case provides
further support for the conclusion that she was given
the process that she was due. Before the department
invoked the ninety-six hour hold on Jayce on September
12, 2014, the social worker assigned to the case had
visited the respondent’s apartment a number of times,
putting the respondent on notice that the department
had legitimate and serious concerns regarding Jayce,
and also allowing the department to begin providing
services to the respondent. Specifically, during the very
first conversation between the social worker and the
respondent, in August, 2014, the respondent agreed to
undergo a substance abuse evaluation and to accept a
referral for Jayce to Early Headstart. That visit had
been prompted by a neighbor’s report that she had
heard Jayce crying for an extensive period of time, and
had entered the apartment after knocking yielded no
answer. The neighbor discovered Jayce wedged
between the wall and the sofa, with abrasions on his
shoulders. The ‘‘ ‘babysitter’ ’’ was passed out. When
the social worker reported to the home to investigate
the report, an adult male answered the door—a person
who the social worker later discovered had a criminal
record and a history of child protection involvement.
During the visit, the respondent admitted to using mari-
juana regularly and indicated that she had no intention
of quitting. Soon after this initial visit, the social worker
learned that the respondent had missed an appointment
for a Birth to Three referral, had failed to attend the
substance abuse assessment and failed to follow up on
the referral to Early Headstart.
The same concerns dominated the next visit that the
social worker made to the respondent’s home. The
respondent acknowledged missing the Birth to Three
appointment but denied receiving an intake packet from
Early Headstart, and questioned the need for a sub-
stance abuse evaluation. She and the social worker also
discussed the looming threat of eviction and the lack
of food in the home. The only food in the apartment
was a half empty box of cereal. The social worker told
the respondent that she would return the following day.
When the social worker returned the next day, Sep-
tember 12, 2014, the respondent was not there, and had
left Jayce in the care of her seventeen year old girlfriend,
with only a box of frozen peas in the apartment. When
the respondent returned home, the social worker again
raised the issues of the respondent’s lack of appropriate
follow-through in accepting services that had been
referred to her, her ongoing substance abuse and her
reliance on inappropriate caregivers. The respondent
ordered the social worker to leave, stating that she
would use whoever she wanted to watch Jayce, and
that she would continue to use marijuana.
After the department removed Jayce from the home,
the respondent’s rights were safeguarded by a number
of procedural protections, beginning with the provision
of appointed counsel, who represented her at the Sep-
tember 26, 2014 preliminary hearing on the petitioner’s
motion seeking an order of temporary custody. The
respondent was also provided with preliminary specific
steps as early as September 16, 2014. The specific steps
required her to take part in counseling, focusing both
on individual mental health and the development of
parenting skills, with the goal of improving her judg-
ment and helping her to understand how her poor
choices impacted Jayce. She also was required to accept
in-home support services, follow recommendations for
substance abuse treatment and submit to random drug
testing. She was prohibited from using illegal drugs
or abusing alcohol or medicine. She was required to
cooperate with service providers, including those pro-
viding Birth to Three and individual counseling services.
Additionally, she was ordered to cooperate with court-
ordered evaluations, secure or maintain adequate hous-
ing and a legal income, refrain from involvement in the
criminal justice system, and participate in supervised
visitation with Jayce. The respondent signed an
acknowledgment of receipt of the preliminary specific
steps and, by so doing, agreed to cooperate with them.
She also acknowledged: ‘‘I understand that if I do not
follow these steps the existing order or disposition may
be changed. I understand that if I do not follow these
specific steps it will increase the chance that a petition
may be filed to terminate my parental rights perma-
nently so that my child may be placed in adoption. I
understand that I should contact my lawyer and/or [the
department social] worker if I need help in reaching
any of these steps.’’ These specific steps served to place
the respondent on notice both of what she was required
to do in order to regain custody of Jayce and of the
possible consequences of failing to comply with the
specific steps. The specific steps also provided her with
her best road map toward rehabilitation.
The respondent was afforded every opportunity to
comply with the specific steps and to rehabilitate. She
was provided with a myriad of services that were specif-
ically targeted to assist her in meeting those require-
ments. Those services included individual therapy with
Janet Juliano, who provided her with trauma focused,
cognitive behavioral therapy in order to address her
current anger management and other mental health
issues by focusing on her childhood trauma. The depart-
ment also offered her group therapy for her anger man-
agement issues, but she declined to participate. She was
provided with parent coaching and education through
Connect to Kids, the service provider that supervised
her visitation with Jayce. She received case manage-
ment services, which included assistance in obtaining
housing, as well as furniture and items for Jayce.
Although the department did not pay the balances on
the respondent’s prior bills, it worked with her on bud-
geting so that she could make payments. She received
treatment for her substance abuse issues, including a
referral to a relapse recovery group, and also received
medication management services. She and Jayce also
received services through Birth to Three. Finally, the
department arranged for the respondent to meet with a
court-appointed psychological evaluator, who met with
her on at least two occasions. Despite receiving all of
these services, the respondent was unable to achieve
a level of rehabilitation that would encourage the belief
that within a reasonable period of time, considering
Jayce’s age and his needs, the respondent would be
able to assume a responsible position in his life.
It is noteworthy that, although the petitioner filed
coterminous petitions on September 16, 2014, Jayce
was adjudicated neglected on January 23, 2015, and the
trial on the petition for termination of the respondent’s
parental rights was delayed specifically for the purpose
of allowing the respondent more time to rehabilitate.
The actual procedure that the respondent received,
therefore, was not the typical procedure received by
a respondent when the petitioner files a coterminous
petition and the adjudication of neglect and termination
of parental rights are decided simultaneously. This
departure from the usual procedure renders irrelevant
the respondent’s claim that she lacked notice that her
prior termination would allow the petitioner to file a
coterminous petition in the present case. She does not
raise any additional claims of lack of notice with respect
to the proceedings. Finally, at trial, the respondent
cross-examined the petitioner’s witnesses, and intro-
duced evidence and presented testimony in support of
her case.
The respondent does not identify any additional pro-
cedural safeguards that would have reduced any risk
of erroneous deprivation. Instead, she claims that the
trial court in the present case should not have relied
on her prior termination of parental rights. We agree
with the trial court that the respondent’s argument,
rather than asking for an additional procedural safe-
guard, suggests that this court should modify the statu-
tory requirements of § 17a-112 (j) (3) (E). For the sake
of argument, however, we assume that in advancing
this claim, the respondent has identified an additional
procedural safeguard. We therefore consider whether
she would have received any greater protection of her
fundamental right to parent J if the trial court had not
been required to consider the prior termination of her
parental rights as one of the elements that the petitioner
was required to prove in order to prevail on the petition.
That inquiry will allow us to determine the probable
value, if any, of the change advocated by the
respondent.
The respondent essentially offers two arguments in
support of her contention that reliance on her prior
termination violated her right to procedural due pro-
cess. First, she argues that her consent to the prior
termination should not be given effect in the present
case because she was a minor at the time that she
consented, and because she lacked notice that one of
the consequences of her consent was that the petitioner
would be able to file coterminous petitions, allowing
her no opportunity to rehabilitate. Second, she argues
that the prior termination does not provide a reliable
indicator of her current ability to parent because it was
consensual rather than involuntary, and also because
too much time had passed between the prior termina-
tion and the present termination proceedings. We
emphasize that the task before us in considering the
respondent’s procedural due process claim is to deter-
mine whether the change in procedure advocated by the
respondent would have decreased the risk of erroneous
deprivation of her fundamental right to parent. Because
we conclude that the respondent received the same
process that she would have received under § 17a-112
(j) (3) (B) (i), which does not require the consideration
of a prior termination of parental rights, we need not
address the substance of the respondent’s arguments
in favor of her claim that her prior termination should
not have been considered.
Just as required by § 17a-112 (j) (3) (E), in order to
prevail on a petition for the termination of parental
rights pursuant to § 17a-112 (j) (3) (B) (i), the petitioner
must prove by clear and convincing evidence the depart-
ment’s reasonable efforts or the parent’s inability or
unwillingness to benefit therefrom, and that termina-
tion is in the best interest of the child. In addition, under
General Statutes (Supp. 2016) § 17a-112 (j) (3) (B) (i),
the petitioner must prove by clear and convincing evi-
dence that ‘‘the child . . . has been found by the Supe-
rior Court or the Probate Court to have been neglected,
abused or uncared for in a prior proceeding . . . 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, con-
sidering the age and needs of the child, such parent
could assume a responsible position in the life of the
child . . . .’’ See also In re Elvin G., 310 Conn. 485,
499, 78 A.3d 797 (2013) (construing § 17a-112 [j] [3] [B]
[i] to require provision to parent of specific steps toward
rehabilitation prior to termination of parental rights).
As we have already observed, § 17a-112 (j) (3) (B)
(i), unlike § 17a-112 (j) (3) (E), does not require the
petitioner to prove that the parent had a prior termina-
tion of parental rights with respect to another child.
There are two additional distinctions between § 17a-
112 (j) (3) (B) (i) and (E), that are noteworthy. First,
in order to terminate a parent’s rights under § 17a-112
(j) (3) (B) (i), the parent must have been provided
with specific steps toward the goal of rehabilitation.
By contrast, under § 17a-112 (j) (3) (E), a parent’s rights
may be terminated without the provision of specific
steps. Second, under § 17a-112 (j) (3) (B) (i), the trial
court may grant a petition for termination only if there
was a finding of neglect in a prior proceeding, whereas
pursuant to § 17a-112 (j) (3) (E), the petitioner may seek
a simultaneous adjudication of neglect and a judgment
terminating parental rights.
In the present case, as we have already noted, the
respondent was provided with specific steps in Septem-
ber, 2014. Additionally, although the petitioner initially
filed coterminous petitions pursuant to § 17a-112 (j) (3)
(E), Jayce was adjudicated neglected in January, 2015,
and action on the petition for termination was post-
poned specifically for the purpose of allowing the
respondent additional time to rehabilitate. Accordingly,
the respondent was given the same process that she
would have received if the petitioner had proceeded
under § 17a-112 (j) (3) (B) (i). That is, just as would
have occurred under § 17a-112 (j) (3) (B) (i), the respon-
dent was provided with specific steps toward rehabilita-
tion and was allowed time to rehabilitate—a little more
than one year. Moreover, although the petition for
neglect and the petition for termination were filed
simultaneously, the court first adjudicated Jayce
neglected, and only addressed the petition for termina-
tion of parental rights at trial, more than six months
later. Accordingly, because she received the same pro-
cess that she would have received even if her rights
had not been terminated pursuant to § 17a-112 (j) (3)
(E), in part, on the basis of the prior termination, the
respondent has failed to demonstrate that the proce-
dural change that she advocates would have provided
her with any benefit.
Because we conclude that the respondent has failed
to show that, under the facts of the present case, the
requirement of § 17a-112 (j) (3) (E) that the petitioner
prove the prior termination by clear and convincing
evidence created any risk of erroneous deprivation of
the respondent’s parental rights, and that she also failed
to demonstrate that she would have received any addi-
tional benefit if the court was not required to consider
the prior termination, it is unnecessary for us to con-
sider ‘‘the [s]tate’s interest in the procedures used,
including the fiscal and administrative burdens that any
additional or substitute procedures would entail.’’
(Internal quotation marks omitted.) In re Tayler F.,
supra, 296 Conn. 554; see also Mathews v. Eldridge,
supra, 424 U.S. 335. Accordingly, we conclude that the
respondent has failed to demonstrate that her right to
procedural due process was violated by the trial court’s
consideration of the prior termination of parental rights.
II
REASONABLE EFFORTS AND INABILITY
OR UNWILLINGNESS TO
BENEFIT THEREFROM
The respondent next claims that the trial court
improperly concluded that the department made rea-
sonable efforts toward reunification and that the trial
court failed to make a finding that she was unable or
unwilling to benefit from reasonable efforts. We
disagree.
We have explained that ‘‘the [petitioner] must prove
either that [the department] has made reasonable
efforts to reunify or, alternatively, that the parent is
unwilling or unable to benefit from reunification efforts.
Section 17a-112 (j) clearly provides that the [petitioner]
is not required to prove both circumstances. Rather,
either showing is sufficient to satisfy this statutory ele-
ment.’’ (Emphasis omitted.) In re Jorden R., 293 Conn.
539, 552–53, 979 A.2d 469 (2009). Although the trial
court did not, in its November 5, 2015 memorandum of
decision, expressly state that it found that the respon-
dent was unable or unwilling to benefit from reunifica-
tion efforts, the court later clarified that it had made
that finding. Specifically, in its January 20, 2016 articula-
tion, the court explained that it had found that the
respondent was both unwilling and unable to benefit
from those efforts. That finding was supported by suffi-
cient evidence in the record, as explained at length in
the trial court’s memorandum of decision. See In re
Gabriella A., 319 Conn. 775, 789–90, 127 A.3d 948 (2015)
(trial court’s finding that respondent was unable or
unwilling to benefit from reunification efforts reviewed
for evidentiary sufficiency).
Because the court stated in its articulation that it had
found that the respondent was neither willing nor able
to benefit from the department’s reasonable efforts
toward reunification, it was not necessary for the court
to make any finding as to whether the department’s
efforts were reasonable.5 See id. We reject the respon-
dent’s suggestion that the court’s failure to make this
finding expressly in the memorandum of decision pre-
cluded the court from later clarifying that it had made
the finding.
III
FAILURE TO REHABILITATE
Lastly, the respondent argues that the trial court
improperly found that she had failed to rehabilitate. In
support of her claim, the respondent points to evidence
in the record that: she complied with the specific steps;
the decision to postpone the trial on the petition for
termination was made in light of her progress up to that
point; the trial court granted her motion for additional
visitation; and her service providers observed that she
was making progress and her individual counselor
stated to the court-appointed evaluator that if the
respondent had the proper services in place and
received the proper medication, she would in time be
able to provide a stable home for Jayce.6 We disagree
that the evidence relied on by the respondent calls into
question the sufficiency of the evidence to support the
trial court’s finding that she failed to rehabilitate.
We review the trial court’s subordinate factual find-
ings for clear error, and review its finding that the
respondent failed to rehabilitate for evidentiary suffi-
ciency. In re Shane M., 318 Conn. 569, 587–88, 122
A.3d 1247 (2015). In reviewing that ultimate finding for
evidentiary sufficiency, we inquire ‘‘whether the trial
court could have reasonably concluded, upon the facts
established and the reasonable inferences drawn there-
from, that the cumulative effect of the evidence was
sufficient to justify its [ultimate conclusion].’’ (Internal
quotation marks omitted.) Id., 588. We emphasize that
‘‘[i]t is not the function of this court to sit as the [fact
finder] when we review the sufficiency of the evidence
. . . rather, we must determine, in the light most favor-
able to sustaining the verdict, whether the totality of the
evidence, including reasonable inferences therefrom,
supports the [judgment of the trial court] . . . . In
making this determination, [t]he evidence must be given
the most favorable construction in support of the [judg-
ment] of which it is reasonably capable. . . . In other
words, [i]f the [trial court] could reasonably have
reached its conclusion, the [judgment] must stand, even
if this court disagrees with it.’’ (Internal quotation marks
omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 442,
815 A.2d 119 (2003).
An important corollary to these principles is that the
mere existence in the record of evidence that would
support a different conclusion, without more, is not
sufficient to undermine the finding of the trial court.
Our focus in conducting a review for evidentiary suffi-
ciency is not on the question of whether there exists
support for a different finding—the proper inquiry is
whether there is enough evidence in the record to sup-
port the finding that the trial court made. Applying that
standard to the present case, we conclude that there
was sufficient evidence in the record to support the
trial court’s finding that the respondent failed to achieve
a sufficient degree of rehabilitation.
The trial court offered the following summary of the
respondent’s failure to rehabilitate: ‘‘She has not been
compliant with [the specific] steps nor has she made
any significant strides in addressing her continued sub-
stance use and ongoing mental health difficulties and
medication needs.’’ The court found that the respondent
persisted in refusing to accept that her use of marijuana
was a problem for her, and also observed that she ‘‘con-
sistently denied the efficacy of any [prescribed] medica-
tions to assist her with her deep-seated mental health
difficulties . . . .’’ The court further determined that
although the respondent attended many of the services
that were offered to her, she failed to engage in a mean-
ingful manner. Further, the court found that the respon-
dent had made little progress in her trauma focused,
individual therapy, and she had not made significant
gains in her ability to regulate herself or in learning to
deal with financial or other problems that confronted
her. The court also noted the respondent’s relapse in
May, 2015, and her unilateral decision to stop taking
the medications that had been prescribed to her for her
mental health.
The court also relied on the report of the court-
appointed evaluator, who reported that as late as
August and early September, 2015, shortly before trial,
the respondent continued to deny that her marijuana
use was a problem for her. The court cited to the evalua-
tor’s conclusion that he could not recommend reunifica-
tion, and also noted that the evaluator had reported
that the respondent ‘‘needed an additional [eight to
twelve] months to establish an unbroken rehabilitation
trajectory [that] has durability and a satisfactory mea-
sure of reliability.’’
The trial court observed that the one bright spot was
that the respondent has done well in her supervised
visitation with Jayce, and has maintained a strong bond
with him. That alone, however, was not sufficient to
persuade the court that, given the respondent’s contin-
ued resistance to clinical treatment, her denial of the
effects of her marijuana use on her ability to parent
Jayce, her slow progress in dealing with her mental
health issues, and her resistance to medication, that
the respondent would be able ‘‘to achieve such degree
of personal rehabilitation as would encourage the belief
that within a reasonable period of time, considering the
age and needs of the child, such parent could assume
a responsible position in the life of the child . . . .’’
General Statutes (Supp. 2016) § 17a-112 (j) (3) (E). The
evidence relied on by the trial court was more than
sufficient to support its finding that the respondent
failed to rehabilitate.
The respondent’s argument to the contrary empha-
sizes that some of the evidence in the record could
have supported the opposite conclusion. While that may
be true, it is not relevant to our analysis of whether
there exists sufficient evidence in the record to support
the trial court’s ultimate finding that the respondent
failed to rehabilitate. As we have explained, the mere
fact that there was evidence in the record that would
have supported a different finding is not enough to call
into question the sufficiency of the evidence that does
provide support for the court’s finding.
Additionally, much of the evidence relied on by the
respondent, although it may provide some support for
the conclusion that she made progress, is not inconsis-
tent with the trial court’s finding that she failed to reha-
bilitate. For example, she cites to the extra time that
she was given to rehabilitate in light of her progress
up to that point in time. Allowing a parent additional
time to rehabilitate is not dispositive, one way or the
other, on the issue of whether the parent has success-
fully rehabilitated. While such a decision reflects the
court’s belief that rehabilitation is possible, it also nec-
essarily means that the court does not believe that the
parent has at that time successfully rehabilitated.
Another piece of evidence relied on by the respondent
is similarly consistent with the trial court’s finding that
she failed to rehabilitate. She notes that her service
providers reported to the court-appointed evaluator
that she had made significant progress. Although that
general statement reflects well on the respondent, and
the providers did report to the evaluator that the respon-
dent had made significant progress, that statement pro-
vides an incomplete picture. For example, Andrea
Fisher, who supervised the respondent’s visitation with
Jayce, and provided her with parent coaching and edu-
cation, generally had positive comments about the
respondent’s progress, and stated that her parenting
skills were sufficient at that time to support reunifica-
tion. She also reported, however, that it was not possi-
ble to predict how the respondent would parent when
not supervised, ‘‘especially if her clinical and relation-
ship issues are unresolved.’’ Fisher’s opinion that the
respondent would be ready for reunification, therefore,
was conditioned on the resolution of the respondent’s
clinical issues—issues that the trial court expressly
found had not been resolved. Juliano, the respondent’s
individual therapist, provided a similar report. Although
Juliano opined that the respondent ‘‘would be able to’’
provide a full-time home for Jayce, she qualified that
statement on the provision of proper services and medi-
cation. It is significant that as of the date of trial, the
court found that the respondent continued to deny the
efficacy of prescribed medications and to insist that her
self-medication with marijuana was a viable alternative.
The court specifically noted, in fact, that the opinions
offered by her providers—that the respondent may,
with proper supports and medications, be able to reha-
bilitate—left the estimated time required for such reha-
bilitation uncertain. That lack of certainty was rendered
even more significant in light of the respondent’s contin-
ued resistance to supports. The evidence relied on by
the respondent, therefore, does not call into question
the trial court’s determination that she failed to reha-
bilitate.
The judgment is affirmed.
In this opinion the other justices concurred.
* In accordance with the spirit and intent of General Statutes § 46b-142
(b) and Practice Book § 79a-12, the names of the parties involved in this
appeal are not disclosed. The records and papers of this case shall be open
for inspection only to persons having a proper interest therein and upon
order of the Appellate Court.
** December 8, 2016, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
Jayce’s father, whose parental rights were also terminated by the judg-
ment of the trial court, has not appealed from that judgment.
2
Although § 17a-112 (j) has been amended by the legislature since the
events underlying this appeal; see, e.g., Public Acts 2016, No. 16-70; Public
Acts 2015, No. 15-159; those amendments have no bearing on the merits of
this appeal. In the interest of simplicity, all references to § 17a-112 (j) in
this opinion are to the version appearing in the 2016 supplement to the
General Statutes.
3
We take the somewhat unusual step of incorporating the trial court’s
statement of its factual findings in its entirety in order to emphasize the
meticulous and thorough nature of those findings, which provides the best
illustration that the trial court properly considered all of the elements of
§ 17a-112 (j) in arriving at its ultimate conclusion that the respondent’s
parental rights should be terminated.
4
We observe that the respondent has not claimed that her right to substan-
tive due process was violated. Nor has she claimed that § 17a-112 (j) (3)
(E) is unconstitutional on its face. She has claimed only that the statute is
unconstitutional as applied to her and only insofar as it deprives her of
procedural due process.
5
As for the respondent’s challenge to the trial court’s finding that the
department made reasonable efforts, we merely observe that the respondent
does not claim that there is insufficient evidence to support that finding.
Instead, she argues that, because at one point in the memorandum of decision
the trial court stated that the department was not statutorily required to
make reasonable efforts toward reunification pursuant to § 17a-112 (j) (3)
(E), the court’s determination that the department’s efforts were nonetheless
reasonable was improper. The respondent’s argument is meritless. The
court’s isolated statement does not invalidate its careful and thorough sum-
mary and analysis of the efforts made by the department and its finding
that those efforts were reasonable.
6
The respondent also claims that the petitioner’s failure to present evi-
dence regarding the services that were offered to her in connection with
the prior termination is somehow relevant to the sufficiency of the evidence
to support the trial court’s determination that, with respect to the present
termination, the respondent has failed to rehabilitate. She also claims that
the petitioner failed to present evidence of any efforts she may have made
to rehabilitate herself between the prior termination and the filing of the
conterminous petition in the present case. Neither the services that were
offered to the respondent during the proceedings in the prior termination,
nor any efforts that she made in the time period between the two termination
proceedings is relevant to the issue of whether the respondent failed to
rehabilitate sufficiently and in time to be able to parent Jayce.