In re Shane M. ( 2015 )

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IN RE SHANE M.—DISSENT
ZARELLA, J., with whom ROBINSON, J., joins, dis-
senting. I am deeply troubled by the majority’s decision
to affirm the judgment of the Appellate Court, which
upheld the trial court’s termination of the parental rights
of the respondent father, Matthew M. (father). The trial
court found, by clear and convincing evidence, that the
Department of Children and Families (department) had
proven that ‘‘the level of rehabilitation achieved by the
parents falls far short of that which would reasonably
encourage the belief that at some future date either
parent could assume a safe, reliable and responsible
position in [Shane M.’s] life given his age and needs.’’1
In making this finding, the court relied heavily on the
report and testimony of Derek A. Franklin, a licensed
clinical psychologist who conducted a psychological
evaluation of the father on September 20 and 25, 2012,
‘‘[to] assist the court [in determining] the father’s reha-
bilitative status now and in the foreseeable future to
parent Shane.’’2 The trial court deemed Franklin’s report
and testimony ‘‘highly credible’’ and agreed with his
recommendation that the father’s parental rights should
be terminated because the recommendation was based
on Franklin’s ‘‘review of the history, the empirical data,
and his findings that a number of concerns continue to
persist, specifically [the] father’s failure to continue
with substance abuse treatment, his need for active
monitoring and testing for drug abuse, his lack of insight
in addressing his ongoing anger issues, his need for a
comprehensive evaluation concerning his medication
needs, and his failure to achieve sufficient personal
rehabilitation after such an extensive period of time
. . . .’’ In my view, however, Franklin’s findings and
recommendation were insufficient to support the trial
court’s conclusion. Franklin failed to consider several
treatment programs that the father successfully com-
pleted during the preceding year for the purpose of
complying with the specific steps, and, therefore,
Franklin’s findings and recommendation were based in
part on outdated information that did not describe the
father’s condition at the time of the termination pro-
ceeding. In addition, Franklin failed to consult any of
the substance abuse or mental health counselors who
had been working with the father for the past several
years and thus did not have the benefit of their opinions.
Rather, Franklin relied on a series of department
reports, some of which were outdated and did not
describe the father’s recent progress, and on a battery
of personality tests that provided information regarding
the general propensities of persons with similar results
but no information regarding the father’s actual behav-
ior. Accordingly, to the extent the trial court found, on
the basis of Franklin’s findings and recommendation,
that the father had failed to rehabilitate, its finding
was not supported by clear and convincing evidence
because Franklin’s conclusions were based in large part
on generalized propensity information and a series of
outdated department reports, and any remaining facts
the trial court correctly found were insufficient to sup-
port the termination of the father’s parental rights.
I first note that, under the newly clarified standard of
review, we review the trial court’s subordinate factual
findings for clear error. Under this standard, ‘‘[a] finding
is clearly erroneous when either there is no evidence
in the record to support it, or the reviewing court is
left with the definite and firm conviction that a mistake
has been made. . . . On appeal, [our] function is to
determine whether a trial court’s conclusion was factu-
ally supported and legally correct.’’ (Internal quotation
marks omitted.) In re Jorden R., 293 Conn. 539, 558–59,
979 A.2d 469 (2009). We review the trial court’s ultimate
conclusion as to whether a parent has failed to rehabili-
tate, however, to determine ‘‘whether the trial court
could have reasonably concluded, upon the facts estab-
lished and the reasonable inferences drawn therefrom,
that the cumulative effect of the evidence was sufficient
to justify its findings.’’ (Internal quotation marks omit-
ted.) In re Soncheray H., 42 Conn. App. 664, 668, 680
A.2d 1363, cert. denied, 239 Conn. 940, 684 A.2d 712
(1996). Under both standards, ‘‘we construe the evi-
dence in a manner most favorable to sustaining the
judgment of the trial court.’’ Id.; see also In re Jorden
R., supra, 559 (‘‘every reasonable presumption is made
in favor of the trial court’s ruling’’ [internal quotation
marks omitted]).
Turning to Franklin’s specific findings, I begin with
several general comments regarding the information on
which Franklin relied. First, Franklin interviewed the
father directly for only a little more than two hours.3
In addition, Franklin observed the father during a forty
minute supervised visit with Shane, as ordered by the
court. Although Franklin also was in possession of the
test results and other documentation provided by the
department, I believe two hours and forty minutes of
interacting with the father and observing him with
Shane was an insufficient amount of time with the father
to determine his rehabilitation status.
Second, Franklin testified that the results of several
of the father’s personality tests4 discussed in Franklin’s
report did not necessarily describe the father but,
rather, described the general propensities of persons
with similar test results.5 Thus, to the extent the inter-
pretive section of Franklin’s written report suggested
that the propensities indicated by the test results
described the father’s actual conduct, there is no sup-
port for this conclusion.6
Third, the collateral data sources the department pro-
vided to Franklin consisted of eleven documents pre-
pared by three different department social workers who
supervised the father’s case from the summer of 2010
to September, 2012, but who never worked directly with
the father as therapists or counselors. In addition, four
of the eleven documents were prepared before the spe-
cific steps were ordered on November 19, 2010,7 four
other documents were prepared after the specific steps
were ordered but more than one year before Franklin
interviewed the father,8 and, of the three remaining
documents, two were prepared approximately ten
months, and the other approximately three months,
before Franklin interviewed the father.9 The department
thus provided Franklin with very little recent informa-
tion regarding the father’s rehabilitation progress at the
time of the evaluation. Furthermore, Franklin stated in
his written evaluation that the ‘‘most recent status
report update that [he was] in receipt of from [the
department was] dated July 6, 2011,’’ almost fifteen
months before Franklin’s evaluation of the father in late
September, 2012. This admission not only suggests that
Franklin relied on outdated information, but raises the
question of whether Franklin was aware of the status
updates included in the three most recent department
documents relating to the termination proceeding that
were listed as collateral data sources in Franklin’s
report. See footnote 9 of this opinion.
Fourth, although the collateral data sources con-
tained references to most of the father’s substance
abuse and mental health counselors, including Nancy
Burgos, Charles Frazier, Lisa Sargis, and Rudolph
Thomas, Franklin testified that he failed to speak with
any of these counselors in order to learn firsthand about
the father’s progress and condition. In explaining this
omission, Franklin stated that he was allowed to speak
only to persons authorized by the department and that,
if the names of the father’s service providers were not
included on the list of authorized persons, he made no
effort to contact them.10 He added that he typically
called all service providers listed by the department
when evaluations were requested, that he had done so
in this case, and that none of his calls had been returned,
although he was unable to remember the names of
specific persons he had called. Franklin thus prepared
his report without the input of a single service provider,
many of whom gave testimony at the termination hear-
ing in January, 2013, regarding the father’s condition
and progress that flatly contradicted Franklin’s find-
ings. Although the trial court neither credited nor dis-
counted this testimony, it very likely would have influ-
enced Franklin’s report and recommendation, which
the trial court cited multiple times in concluding that
the state had satisfied its burden of proving the father’s
failure to rehabilitate by clear and convincing evidence.
In sum, I believe the foregoing limitations in Frank-
lin’s report resulted in findings by the trial court regard-
ing the level of rehabilitation achieved by the father
that were not supported by clear and convincing evi-
dence, and, therefore, ‘‘the trial court could [not] have
reasonably concluded, upon the facts established and
the reasonable inferences drawn therefrom, that the
cumulative effect of the evidence was sufficient to jus-
tify its [finding]’’ that the father had failed to rehabili-
tate. In re Soncheray H., supra, 42 Conn. App. 668. In
the text that follows, I describe each of the concerns
that, according to Franklin and the trial court, continued
to persist at the time of Franklin’s evaluation and that
served as the basis for the termination of the father’s
parental rights. I then describe the conflicting testimony
of the service providers, who worked with the father
over a period of months and years, that casts doubt on
the trial court’s conclusion that the father had failed
to rehabilitate.
I
SUBSTANCE ABUSE
The trial court found, on the basis of Franklin’s report
and testimony, that the father had been diagnosed with
cannabis abuse and that the testing data suggested there
was a ‘‘high potential for relapse’’ and for ‘‘continued
use or cravings, which [would] need to be monitored
and addressed.’’ The court referred to test results
obtained by Franklin and described in his report show-
ing an elevation in the clinical domain of substance
abuse and noted Franklin’s opinion that testing profiles
indicating evidence of ‘‘mood dysregulation exacer-
bated by anxiety’’ suggested that the father was likely
to continue abusing substances to obtain emotional
control and management of his anxiety. The trial court
also cited Franklin’s recommendation that the father
should continue to be treated for substance abuse and
‘‘engage in substance abuse groups due to his concern
that [the] father was actively using [drugs], as the clini-
cal data suggest[ed] that, at [the] very minimum, he
continue[d] to crave cannabis and, therefore, [was] sub-
ject to relapse.’’ (Internal quotation marks omitted.)
The court finally noted Franklin’s recommendation that
the father, in addition to participating in substance
abuse groups, should be subject to ‘‘active monitoring
and testing for drug abuse . . . .’’
The trial court’s findings regarding the father’s sub-
stance abuse cravings and relapse potential, however,
were clearly erroneous insofar as they applied to the
father in September, 2012, because they were based
on Franklin’s description of the father’s diagnosis of
substance abuse in 2010 and 2011, and the general pro-
file evidence in Franklin’s report, which, as previously
discussed, described the propensities of persons with
test results similar to those of the father rather than
the father’s condition at the time of the termination
proceeding. The finding in Franklin’s report that the
father refused to participate in recommended substance
abuse counseling, which the trial court also relied on
in concluding that he required additional treatment, was
likewise clearly erroneous because it contradicted the
testimony of the father’s substance abuse counselor.
Erica Cyr, a psychotherapist at Community Health
Resources who evaluated the father for substance
abuse on June 13, 2012, and was a witness for the
department, testified that, although the father initially
did not want to participate in recommended group ther-
apy for substance abuse, he changed his mind within
one week and attended thereafter on a regular basis.
She ultimately counseled the father for twelve weeks,
from the end of August to December, 2012, in order to
address his mental health and substance abuse issues,
and testified that three random urine screens for sub-
stance abuse were negative during that time, although
she was aware of one positive hair test. She described
the father as an active participant in the group who had
a good understanding of substance abuse and that, as
of January, 2013, she believed he was in remission and
that no further treatment was necessary. The depart-
ment’s own witness thus indicated that, in late Septem-
ber, 2012, when Franklin was conducting his evaluation,
the father was participating successfully in group ther-
apy for substance abuse.
Franklin, however, did not have this information
when he prepared his report because he failed to follow
up on the calls he said he had made to the authorized
persons on the department’s list. Franklin specifically
testified he did not speak with Cyr, did not recall if he
had attempted to contact her, and was not aware of her
opinion regarding the father’s drug dependency issues
when he conducted his evaluation. He nonetheless
admitted it was ‘‘critical’’ and ‘‘absolutely important’’
to know how the father was doing in a drug treatment
program in order to conduct a proper substance abuse
evaluation. Accordingly, the trial court’s finding, based
on Franklin’s report, that the father required additional
substance abuse treatment because he was in danger
of a potential relapse was clearly erroneous because it
was not supported by clear and convincing evidence.
II
ANGER MANAGEMENT ISSUES
The trial court also relied on Franklin’s findings
regarding the father’s anger management issues in con-
cluding that he had failed to rehabilitate. The court
stated: ‘‘Franklin diagnosed [the] father with attention
deficit hyperactivity disorder [ADHD], generalized anxi-
ety disorder, and cannabis abuse and antisocial traits.
. . . Testing performed by . . . Franklin indicated ele-
vations [in] the clinical domains of ADHD, anxiety, para-
noia . . . antisocial [traits] and aggression. There was
no evidence of a major depressive disorder, but there
was sufficient evidence of mood dysregulation exacer-
bated by anxiety. Specifically, [d]omains tapping for
anxiety suggest prominent worry. These worries may
be of such magnitude that concentration and attending
are compromised. . . . Franklin also opined that [the]
father scored in the clinically relevant range for para-
noia. He is hypervigilant and closely monitors his envi-
ronment for evidence that others are out to harm him.
He is overly suspicious. [Psychological testing] indi-
cate[s] hostility and mistrust [in] even close relation-
ships. He is easily insulted and tends to hold grudges.
Paranoia does not arise to a level of delusions. There
is no evidence of auditory, visual or kinesthetic halluci-
nations or disturbance in thought content or processing.
Domains . . . tapping for aggression are indicative of
a short fuse, as he is quick to anger . . . . [H]e is more
likely to use verbal reasoning than physical aggression.
However, he may become frustrated easily and, when
provoked, will not back down from confrontation. This
may lead to physical acts of violence. He otherwise
possesses adequate commonsense reasoning, and [his]
judgment is situation specific. . . . Franklin further
opined that [the] father was emotionally stable, but
there was evidence to indicate that he may become
hostile when under emotional duress.
‘‘With regard to [the] father’s mental illness . . .
Franklin opined that [the] father’s anxiety, mood dys-
regulations, and ADHD marginally impact his day-to-
day functioning but that these are likely to be exacer-
bated under the weight of emotional and psychological
distress. He recommended treatment for these issues
. . . .’’ (Internal quotation marks omitted.)
Franklin’s negative evaluation appears to be based
entirely on the father’s test results and thus does not
describe the personality and behavioral characteristics
that the father actually exhibited in September, 2012,
but, rather, the propensities of persons with similar
test results. In fact, testimony from the father’s mental
health counselors, who worked with him over a period
of almost three years, indicates that, in September, 2012,
and thereafter, he either did not display most of the
characteristics described in Franklin’s profile or gradu-
ally overcame them.
Burgos, a clinical social worker at Radiance Innova-
tive Services (Radiance) who conducted mental health
assessments and made recommendations regarding
treatment, evaluated the father in September, 2010,11
for mental health issues and diagnosed him with an
adjustment disorder accompanied by mixed depression
and anxiety. Burgos recommended that he participate
in a parenting program and long-term therapy to address
his ‘‘current life situation,’’ adding that ‘‘[h]e was essen-
tially in crisis in relation to his tumultuous relationship
with [Shane’s mother] and having a very difficult time
coping, especially very nervous and anxious about the
custody of [Shane].’’ She stated that ending the relation-
ship with Shane’s mother likely would resolve some of
his mental health issues, which appeared to be ‘‘situa-
tional,’’ and that the father had indicated to her that he
had enjoyed, learned and profited from the parenting
program.
Sargis, a clinical social worker at Radiance who was
the father’s counselor from May, 2011, through January,
2012, worked with him on problem solving skills, coping
skills and relaxation techniques to reduce his level of
anxiety. She testified that, after she got to know him, she
concluded he was doing much better than she originally
had believed because he was juggling two different jobs
as well as coming to the counseling visits and attending
parenting and domestic violence classes; in her view,
this busy schedule would cause anxiety in any ordinary
person. She acknowledged a concern regarding his
impulse control upon learning of an incident at his
grandparents’ home in November, 2011, during which
he had poured gasoline on their kitchen floor, and thus
recommended that he continue to work on anger man-
agement and coping skills when she left for another
position in January, 2012. She nonetheless concluded
that the father was functioning in most areas of his life,
had listened and responded positively to her sugges-
tions regarding anger management and coping skills,
felt remorse about the incident at his grandparents’
home, and, as time went by, his anxiety seemed to
subside. She also testified that he did not miss his
appointments, would arrive on time, and was coopera-
tive and open-minded.
Thomas, a social worker at Radiance who had been
counseling the father since January, 2012, when Sargis
left, and was continuing in that capacity when he testi-
fied at the termination hearing in January, 2013, also
worked with the father in the parenting program for
thirteen weeks. He testified that the father consistently
attended and fully participated in the program and that
he was nurturing and able to share his ideas about how
to parent a child. Thomas stated that the department’s
goals for the father were to learn how to parent a young
child, deal with substance abuse, obtain gainful employ-
ment, and resolve his anxiety issues. With respect to
these goals, Thomas described the father as consis-
tently employed and as having no hyperactivity issues.
Thomas also testified that the father was doing well
managing his anxiety, which no longer was a concern.
He explained that the father could be stubborn and
opinionated at times, but that was part of his personality
and not a mark against him, especially because he could
listen to and take advice. Thomas described the calming
techniques that he had discussed with the father and
then provided an example of how the father used them
effectively, at Thomas’ suggestion, in the course of
obtaining a change in position at his workplace in order
to avoid contact with a manager who was ‘‘getting on
his nerves.’’
Finally, Frazier, a clinical social worker and the presi-
dent of Radiance who had worked with the father as a
facilitator in a domestic violence group in 2011 through
2012, described him as anxious by nature because he
was a person who wanted to do things quickly and to
do the right thing, but that he did not see this quality
as a negative. Frazier testified that the father always
was cooperative and engaged during the twenty-four
week program, which he completed in 2012, and that
he voluntarily shared his perspective. He also was, for
the most part, on time and attended most classes,
although there were occasional conflicts with his two
jobs. Frazier further testified that he always had
believed the father’s domestic violence risk was low
and that he had changed over the course of the program
from denying that he was an offender, at the beginning,
to understanding that domestic violence covers a wide
spectrum of behavior and recognizing that he had been
an offender. Frazier testified that the father was using
the skills he learned in the group and that he understood
and demonstrated insight into how important a violence
free environment is to children, as well as the adverse
consequences for children who are exposed to violence.
Frazier added that he had seen growth in the father’s
ability to manage impulsive behaviors and anxiety and
to develop a long-term perspective in problem solving.
From this testimony, it is clear that the father’s thera-
pists and counselors, who had worked with him during
the two years prior to Franklin’s evaluation, believed
that the father had made progress and no longer dis-
played a high level of anger or hostility when dealing
with stressful situations. This was especially apparent
from Frazier’s testimony about the father’s participation
in the domestic violence program and from Thomas’
testimony explaining how the father had resolved a
stressful situation at his workplace in a constructive
manner without overreacting. If Franklin had had the
benefit of these observations by the father’s therapists
and counselors, his conclusions regarding the father’s
progress and his ultimate recommendation might have
been quite different. Accordingly, the trial court’s find-
ing that the father continued to demonstrate a ‘‘lack of
insight in addressing his ongoing anger issues,’’ which
was based on the report Franklin prepared without the
benefit of consulting the father’s service providers, was
clearly erroneous because that finding was not sup-
ported by clear and convincing evidence.
III
MEDICATION NEEDS
The trial court also expressed concern regarding the
father’s refusal to participate in a comprehensive psy-
chiatric evaluation to determine if medication was
required to address his mental health issues. The trial
court stated: ‘‘Notably, [Franklin] opined that it was
imperative that [the] father be referred for a psychiatric
consultation in light of his impulse control issues and
ADHD, and that would serve to identify medication
that could be useful in ameliorating or managing his
symptoms, and that, without medication, [the] father
would most likely continue to have problems.’’ Frank-
lin’s recommendation, however, was based on a single
tentative comment by one of the father’s prior therapists
that never was repeated by any of his subsequent thera-
pists or counselors. Rather, medication to control his
mental health issues apparently became unnecessary
based on the progress described by Thomas and Frazier
in their testimony. See part II of this opinion.
As previously discussed, Burgos, the clinical social
worker at Radiance who initially conducted a mental
health evaluation of the father in September, 2010,
before the specific steps were ordered, testified that
she believed he required long-term therapy to address
his ‘‘current life situation,’’ meaning his ‘‘tumultuous
relationship’’ with Shane’s mother, and that ending the
relationship with Shane’s mother, which he had done
at least one year prior to his interview with Franklin,
very likely would resolve some of his mental health
issues. Notably, Burgos did not recommend an evalua-
tion for medication.
Thereafter, the only counselor who recommended
possible medication was Sargis, who worked with the
father in 2011, after Burgos left for another position.
Sargis testified that she suggested initially that the
father see a psychiatrist for a medical evaluation to
cope with current stresses in his life, acknowledged a
concern regarding his impulse control upon learning of
the incident at his grandparents’ home in November,
2011, and recommended that he continue to work on
anger management and coping skills when she left for
another job in January, 2012. Sargis also testified that
she did not know if medication was required because
she was not a psychiatrist and noted that the father
seemed to be functioning well in most areas of his life.
Under Thomas’ guidance, the father’s anxiety report-
edly diminished. Thomas specifically testified that the
father no longer had hyperactivity issues and that his
anxiety no longer was a concern. Frazier also testified
that the father had done well in his domestic violence
class, was a low risk for violence, and had developed
insight into his anger management issues. As a conse-
quence, the trial court’s findings, based on Franklin’s
report, that the father still had impulse control issues
that required medication and that he most likely would
continue to have problems managing his symptoms
without medication were clearly erroneous because
they were not supported by clear and convincing evi-
dence from the father’s therapists and counselors, each
of whom had worked with him for many months and
knew him far better than Franklin.
IV
FAILURE TO ACHIEVE SUFFICIENT
REHABILITATION
The trial court ultimately agreed with Franklin’s find-
ing that the father had failed to achieve sufficient per-
sonal rehabilitation in the two years preceding the ter-
mination proceeding. Although the trial court did not
provide more detail regarding the factors on which
Franklin relied in making this finding, Franklin’s report
ended with a recommendation that the father’s parental
rights should be terminated because (1) he had not
continued with substance abuse treatment, (2) he had
not participated in the domestic violence classes he
needed to manage his anger, and (3) the time required
to address these concerns had long since passed. As
previously discussed, however, the father did continue
with group therapy for substance abuse, and his coun-
selor, Cyr, testified that he was in remission and
required no further treatment. Frazier also testified that
the father had completed a twenty-four week domestic
violence program in 2012, presented a low risk of vio-
lence, and was using the skills he had learned in the
group in his daily life. Thomas likewise testified that
the father had demonstrated growth and was doing well
with his problem solving skills. Accordingly, two of
the three major findings that provided the basis for
Franklin’s recommendation to terminate the father’s
parental rights and the trial court’s ultimate conclusion
that the father had failed to rehabilitate were clearly
erroneous because they were not supported by clear
and convincing evidence.
V
OUTSTANDING UNRESOLVED STEPS
One of the last persons to testify at the termination
hearing in March, 2013, was Amita Patel, the most recent
department social worker assigned to the father’s case.
In her report dated March 15, 2013, entitled ‘‘Amended
Addendum to Social Study,’’ she noted that the father
had completed the group therapy program for sub-
stance abuse at Community Health Resources, that no
further treatment was recommended, and that the
results of an unsupervised urine screen on March 4,
2013, were negative. She also noted that the father had
successfully completed the terms of his probation on
February 10, 2013, although he had been issued a speed-
ing ticket on February 6, 2013. She further stated that
the father reported he would share childcare duties
with his new wife upon reunification with his children
and that he planned on using family members as backup
caregivers. Patel stated that she had met the father’s
wife and that she maintained full-time employment, was
willing to participate in a substance abuse evaluation
and was confident in her parenting skills, as she had
helped raise her godchild, nieces and nephews.
In her report and testimony, Patel stated that the
department’s recommendation to terminate the father’s
parental rights came down to three as yet unsatisfied
requirements, namely, taking a hair follicle test, partici-
pating in the psychiatric evaluation recommended by
Franklin to determine his need for medication, and
accepting a parent mentor during visitation to enhance
his parenting skills. I do not believe, however, that the
father’s failure to comply with these three requirements
could have led the trial court to reasonably conclude,
upon the facts established and the reasonable infer-
ences drawn therefrom, that the cumulative effect of
the evidence was sufficient to establish that the father
had ‘‘failed to achieve the degree of personal rehabilita-
tion that would encourage the belief that within a rea-
sonable period of time, considering the age and needs
of [Shane], [he] would assume a responsible position
in the life of [that] child.’’
The father’s therapists and counselors did not agree
with Franklin that the father continued to have serious
anger management issues, which was the basis for
Franklin’s recommendation that the father undergo a
psychiatric examination to determine his need for medi-
cation. Accordingly, this recommendation was not sup-
ported by clear and convincing evidence of such a need.
Next, although the father resisted having a parent
mentor at the visitations, he stated that he would be
open to a mentor if he should be reunited with his two
children. The department’s recommendation that the
father be assisted by a parent mentor during the visita-
tions was apparently based on a suggestion by one of
the visitation supervisors that the father would ‘‘bene-
fit’’ from ‘‘a parent aide or some parental guidance
. . . .’’ This same supervisor, however, also reported
that the father’s visitations were going well.
Keva Noel, an independent consultant who worked
for Radiance and supervised the father’s visitation with
Shane and Shane’s younger brother from April, 2012,
until the time she testified in January, 2013, described
the father’s interactions with Shane and his brother as
‘‘appropriate.’’ She elaborated that, although the father
sometimes became frustrated, he normally conducted
himself with a calm demeanor and used a level tone of
voice. Noel stated that the only recommendation she
had made was during the summer of 2012, when she
suggested that the father could benefit from a parent
aide or some parental guidance during his visits because
of the conflicting demands of two very young children
of different ages. She nonetheless stated that the overall
success of the visits had been good, the father had
interacted well with Shane, the two had bonded, and
the only improvement would be learning how to better
attend to the two children simultaneously.
Thomas likewise gave positive testimony regarding
the father and his parenting skills. He testified that,
when the father attended the parenting program con-
ducted by Thomas, the father was receptive and open to
parenting ideas, and that his own ideas were consistent
with those discussed in the training program. Thomas
also described the father as a ‘‘nurturing kind of person’’
and indicated that he would be interested in having
follow-up visits with the father after reunification to
assist with the transitioning process. Thomas added
that the father’s new wife was ready to support and
help the father if he was reunified with his children.
Additional evidence regarding the father’s parenting
skills was provided by Shane’s foster mother. She testi-
fied that she had been present during three of the
father’s supervised visits with Shane and that the visits
went very well. In fact, she described the atmosphere
as ‘‘like a birthday for Shane and also for the sibling,’’
and stated that the father was ‘‘great’’ with the children.
She also testified that, about one year earlier, the father
had met the foster parents and Shane at a fast-food
restaurant and that this occasion also went smoothly
but that, two months later, a department social worker
called and told the foster parents not to reach out to
the father until further notice. She added that the father
had given her a book with his voice, which Shane recog-
nized as his father’s voice, and that the father sent
Shane gifts for Christmas and his birthday. Accordingly,
although the father did not satisfy the department
requirement of a parent mentor during his visitations
with Shane, his resistance must be considered in light
of other evidence indicating that he had a positive rela-
tionship and demonstrated appropriate parenting
behavior with Shane, that his new wife was willing to
assist him in parenting Shane, that he was willing to
accept a mentor upon reunification and that Thomas
had expressed interest in advising him on parenting
issues should reunification occur.
The department’s final unsatisfied requirement was
the hair follicle test. Although the father refused this
test and gave different excuses for doing so, his most
recent excuse was that his attorney had advised him
not to take it.
In conclusion, because there appears to be no basis
for the psychiatric evaluation to determine the father’s
medication requirements, and because the father
agreed to a parent mentor should the department order
reunification, I believe the only remaining department
requirement that has not been satisfied is the hair folli-
cle test. Accordingly, the father’s failure to complete
these three requirements does not, in my view, satisfy
the standard that ‘‘the trial court could have reasonably
concluded, upon the facts established and the reason-
able inferences drawn therefrom, that the cumulative
effect of the evidence was sufficient to justify its’’ deter-
mination that the father failed to achieve the level of
rehabilitation required to reunify with Shane. (Empha-
sis added.) In re Soncheray H., supra, 42 Conn. App. 668.
VI
THE MAJORITY OPINION
Given the deficiencies in Franklin’s evaluation of the
father, including Franklin’s failure to consider the testi-
mony of the father’s service providers in making his
findings and recommendation, I disagree with the
majority that the trial court properly determined, largely
on the basis of Franklin’s report, that the father could
not achieve the level of rehabilitation required by the
department in the reasonably foreseeable future.
In concluding that the father failed to rehabilitate,
the majority relies on evidence regarding the father’s
conduct prior to November 24, 2010, including the car
seat incident, several protective orders for domestic
violence involving Shane’s mother, and the father’s
arrest for breach of the peace resulting from his attempt
to break down the door to the home of Shane’s mother.
This evidence, however, describes the father’s conduct
before the specific steps were ordered and, therefore,
has no relevance except as a baseline against which to
measure his future rehabilitation.
The remaining evidence on which the majority relies
appears to be based on department reports concerning
events in 2011, including the incident at the home of
the father’s grandparents and an arrest that was not
reported to the department for possession of a con-
trolled substance. The incident at the grandparents’
home, during which the father poured gasoline on the
kitchen floor and threatened but did not light or attempt
to light a fire, resulted in a charge of disorderly conduct,
a protective order between the father and his grandfa-
ther, and a sentence of three months incarceration,
execution suspended, and one year of probation. Nota-
bly, the father subsequently expressed his remorse to
Sargis and successfully completed his probation on Feb-
ruary 10, 2013. He also successfully completed a twelve
week domestic violence program with Frazier, who tes-
tified that the father was a low risk for violence, had
come to accept that he had been an offender, and had
demonstrated insight and growth. Thomas further
reported that he believed the father no longer had any
hyperactivity or anxiety issues and had learned how to
use various calming techniques for dealing with stress-
ful situations. Thomas added that the father and his
grandfather now have a better relationship and that the
father and his grandmother were still close. Neverthe-
less, neither Franklin nor the trial court marshaled and
cited this evidence relating to the father’s rehabilitation
efforts and achievements following the gasoline pouring
incident to assess what he had accomplished.
The only negative event on which the majority relies
that occurred in 2012 was the father’s refusal to take
the single positive hair follicle test. Yet the majority
concludes that ‘‘the [father] fail[ed] to continue with
substance abuse treatment . . . [needed] active moni-
toring and testing for drug abuse . . . [lacked] insight
in addressing his ongoing anger issues . . . [needed]
a comprehensive evaluation concerning his medication
needs, and . . . [failed] to achieve sufficient personal
rehabilitation after such an extensive period of time
. . . .’’ (Internal quotation marks omitted.) This quoted
material is taken directly from the trial court’s memo-
randum of decision, which is subject to the flaws dis-
cussed in this opinion. Accordingly, I would conclude
that, in light of the testimony provided by the father’s
therapists and counselors, and the lack of any further
incidents of major concern during the year or more
prior to the termination proceeding, the trial court’s
determination that the father had failed to rehabilitate
was not reasonable in light of the entire evidence. I
also would conclude that the remaining evidence of the
father’s refusal to take another hair test and to accept
a parent mentor at his visitations, given that he was
willing to accept a mentor and further counseling if
he should be reunited with Shane, was insufficient to
conclude that the level of rehabilitation the father
achieved fell short of that which would reasonably
encourage a belief that, at some future date, the father
could assume a responsible position in Shane’s life.12
See, e.g., In re Elvin G., 310 Conn. 485, 507, 78 A.3d
797 (2013). Thus, I believe this court should reverse the
judgment of the Appellate Court and remand the case
with direction to reverse the judgment of the trial court
terminating the father’s parental rights.13
Accordingly, I respectfully dissent.
1
‘‘We previously have explained that [p]ersonal rehabilitation . . . refers
to the restoration of a parent to his or her former constructive and useful
role as a parent . . . [and] requires the trial court to analyze the [parent’s]
rehabilitative status as it relates to the needs of the particular child, and
further, that such rehabilitation must be foreseeable within a reasonable
time. . . . [General Statutes § 17a-112 (j) (3) (B) (ii)] does not require [a
parent] to prove precisely when [he] will be able to assume a responsible
position in [his] child’s life. Nor does it require [him] to prove that [he] will
be able to assume full responsibility for [his] child, unaided by available
support systems. It requires the court to find, by clear and convincing
evidence, that the level of rehabilitation [he] has achieved, if any, falls short
of that which would reasonably encourage a belief that at some future
date [he] can assume a responsible position in [his] child’s life.’’ (Internal
quotation marks omitted.) In re Elvin G., 310 Conn. 485, 507, 78 A.3d
797 (2013).
2
The evaluation was conducted pursuant to a court order issued in
response to the department’s motion dated August 8, 2012, requesting a
psychological evaluation of Shane’s mother and the father pursuant to Gen-
eral Statutes § 45a-717 (d). The motion stated in relevant part: ‘‘[T]he [depart-
ment] . . . hereby requests that [the] . . . court order a . . . clinical
evaluation of the father with parent-child interactions. . . .
‘‘The department filed a termination of parental rights petition in Novem-
ber, 2011. The parents’ mental health has repeatedly been a presenting child
protection issue in addition to substance abuse, transience, and criminal
activity. . . .
‘‘The father is . . . diagnosed with substance abuse and mental health
issues. . . . A full clinical assessment will assist the court to determine the
father’s rehabilitative status now and in the foreseeable future to parent
Shane. . . .
‘‘Wherefore, the department requests that the court order the psychologi-
cal evaluation as requested.’’
The trial court granted the motion and ordered the psychological evalua-
tion on August 21, 2012.
3
Franklin testified that he spent a total of five hours with the father,
during two of which the father was taking tests by himself. Franklin also
observed the father and Shane during a forty minute supervised visit, thus
leaving slightly more than two hours to conduct a one-on-one interview
with the father.
4
Franklin administered one intelligence test, four mental status and per-
sonality tests, and one substance abuse test.
5
The following colloquy took place during the father’s counsel’s cross-
examination of Franklin:
‘‘[The Father’s Counsel]: You say . . . [in] your report . . . drug usage
has created considerable problems in interpersonal relationships, work per-
formance may have been compromised in the past. On what basis do you
make that comment?
‘‘[Franklin]: The personality portion of the evaluation is not based on an
opinion. So what you are repeating here is not my opinion or, in fact, an
interpretation. It’s based on what the data [are] suggesting. So, if he has
certain elevations with regard to drug usage or drug domain, the data [are]
suggesting that individuals with similar kind[s] of profiles have this kind
of propensity.
‘‘[The Father’s Counsel]: That’s not what it says in this. It’s under personal-
ity, so—
‘‘[Franklin]: Right.
‘‘[The Father’s Counsel]: It does not say based on the data that this is—
‘‘[Franklin]: No. It does say that. It says the results. If you look under
it, that says he completed a personality assessment comprised of various
instruments. Under that heading, all the data [are] related to those instru-
ments. It’s when you [get] to the summary questions where you start making
interpretation[s] of what the data [are] indicating. So, what you are seeing
on the personality and what you are seeing under the IQ score [are] data.
For example, if you look at the last paragraph, it says domains for aggression
are indicative of a short fuse. This is just data information.
‘‘[The Father’s Counsel]: You also say . . . [the father] scored in the
clinically relevant range for paranoia. He is hypervigilant and closely moni-
tors his environment for evidence that others are out to harm him. Now,
that’s based on a standardized test?
‘‘[Franklin]: That’s based again—I want to be clear. This is based on
standardized tests, indicates that individuals with similar profiles have this
propensity. Now, having said that, when you go to the interpretive part, in
the summary questions . . . I’m not talking about paranoia. I’m not talking
about these issues. Now, what I am talking about when you look at this,
you see how it manifests itself. So, he can be overly suspicious. Sometimes
he has problems with interpersonal relationships. But there is certainly no
evidence of [a] psychiatric disorder or paranoia.’’
6
In the interpretative section of his report, Franklin repeated verbatim
much of the propensity data drawn from the test results, thereby suggesting
that the father actually exhibited such propensities in his everyday life. For
example, Franklin repeated in the interpretive section that ‘‘there is evidence
of prominent paranoia which does not rise to a level of delusion.’’ He also
concluded, on the basis of the propensity data: ‘‘[The father] is hypervigilant
and monitors his environment for evidence that others are out to harm him.
This may often result in some level of hostility and mistrust of others.
Anxiety and mood dysregulation are not debilitating, however, they are
likely to impact on the quality of his relationships with others as he typically
is hypervigilant, may [question] the motives of others and is highly suspicious
with negative consequences.’’ When cross-examined on these interpretive
statements, however, Franklin stated: ‘‘There is nothing definitive in the
record that suggests that he will do that. But the data [suggest] that people
with this type of profile may do that.’’ Franklin later added, when the
father’s counsel persisted by asking whether the statement on hostility was
speculative: ‘‘Right. That’s a speculation in that particular response.’’
7
The four documents prepared before the initial specific steps were issued
to the father consisted of: (1) ‘‘Summary of Facts Substantiating Neglect,’’
dated August 11, 2010, prepared by Janet Feliciano, social worker; (2) ‘‘Social
Study for Superior Court for Juvenile Matters,’’ dated October 4, 2010, pre-
pared by Stephanie Duncan, social worker; (3) ‘‘Status Report,’’ dated
November 3, 2010, prepared by Duncan; and (4) ‘‘Social Worker Affidavit,’’
dated November 19, 2010, prepared by Duncan.
8
The four documents prepared between thirteen and twenty-two months
before Franklin interviewed the father consisted of: (1) ‘‘Addendum to Social
Study for Superior Court for Juvenile Matters,’’ dated January 5, 2011, pre-
pared by Stephanie Duncan, social worker; (2) ‘‘Status Report,’’ dated April
18, 2011, prepared by Yolanda M. Leon, social worker; (3) ‘‘Status Report,’’
dated July 6, 2011, prepared by Leon; and (4) ‘‘Study in Support of Motion
to Review Permanency Plan,’’ dated August 11, 2011, prepared by Leon.
9
The remaining three documents were: (1) ‘‘Summary of Facts to Substan-
tiate Petition for Termination of Parental Rights,’’ dated November 23, 2011,
prepared by Yolanda M. Leon, social worker; (2) ‘‘Social Study in Support
of Termination of Parental Rights Petition,’’ dated December 30, 2011, pre-
pared by Leon; and (3) ‘‘Study in Support of Motion to Review Permanency
Plan,’’ dated July 2, 2012, prepared by Leon.
10
Although it is unclear which names were on the list of authorized per-
sons, Franklin could have sought permission from the department to speak
to Burgos, Frazier, Sargis and Thomas, all of whose names appeared in the
department documents and who were listed as collateral data sources, in
order to obtain additional or more updated information.
11
Burgos testified that she had conducted the assessment ‘‘a couple of
years ago, give or take,’’ but the trial court indicated in its memorandum
of decision that the assessment had been conducted in September, 2010.
12
The majority claims that I ignore testimony that strongly supports the
trial court’s conclusions, including testimony that the father refused to
submit to a hair test, refused to have a parental aide during his visitations
with Shane, and refused a psychiatric evaluation to determine his need for
medication. To the contrary, I not only recognize this testimony, but explain
why, when considered together with all of the other evidence, it does not
satisfy the standard that ‘‘the trial court could have reasonably concluded,
upon the facts established and the reasonable inferences drawn therefrom,
that the cumulative effect of the evidence was sufficient to justify its’’ deter-
mination that the father failed to achieve the level of rehabilitation required
to reunify with Shane. (Emphasis added.) In re Soncheray H., supra, 42
Conn. App. 668. As for Frazier’s testimony that the father appeared to be
under the influence of marijuana during one or two of his counseling sessions
in early 2012, this testimony is of questionable value. When further pressed,
Frazier testified that the father denied being under the influence, there was
no proof that he was under the influence, he was ‘‘lucid’’ and ‘‘able to
articulate’’ during the session or sessions and, therefore, that Frazier could
not be sure that the father in fact was under the influence. The majority
thus overstates the value of this testimony, especially given the gravity of
a parental rights termination proceeding.
13
Because I would reverse the trial court’s judgment on this evidentiary
ground, I would not reach the issues of whether the trial court’s findings
fell within the scope of the court-ordered specific steps and whether the
court was required to inform the father that his refusal to submit to a hair
follicle test could result in an adverse inference that he was continuing to
engage in substance abuse.