In re Victor D. ( 2015 )

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IN RE VICTOR D.*
(AC 37352)
Beach, Mullins and Bishop, Js.
Argued October 15—officially released November 20, 2015**
(Appeal from Superior Court, judicial district of
Middlesex, Child Protection Session at Middletown,
Elgo, J.)
Roger N., self-represented, the appellant (respon-
dent father).
Tammy Nguyen-O’Dowd, assistant attorney general,
with whom, on the brief, were George Jepsen, attorney
general, Gregory T. D’Auria, solicitor general, and Ben-
jamin Zivyon, assistant attorney general, for the appel-
lee (Commissioner of Children and Families).
Isidro Rueda, for the appellee (petitioner minor
child).
Benjamin D. Hollander, guardian ad litem for the
minor child.
Opinion
BEACH, J. The respondent father1 appeals from the
judgment of the trial court terminating his parental
rights with respect to his minor child, Victor D. The
respondent essentially claims2 that (1) the court erred
when it found that the Department of Children and
Families (department) had made reasonable efforts
toward reunification and when it found that the respon-
dent had failed to achieve a sufficient degree of personal
rehabilitation, (2) the court violated the double jeop-
ardy clause of the federal constitution, (3) the Commis-
sioner of Children and Families (commissioner)
prejudiced the respondent by withdrawing her support
for reunification of the respondent with the child, and
(4) the child’s guardian ad litem was biased and had a
conflict of interest. We do not agree and affirm the
judgment of the trial court.
The record reveals the following relevant facts and
procedural history. The child was born in May, 2010.
The mother identified the respondent as the biological
father of the child. The mother had a history of abusing
substances since 2005, and both she and the child tested
positive for cocaine and marijuana at the time of the
child’s birth. The commissioner immediately secured a
ninety-six hour hold and filed a neglect petition and an
ex parte order of temporary custody. The order was
granted and specific steps were issued for the mother
and the respondent on May 28, 2010. The respondent
was not present at this proceeding.
In its memorandum of decision, the court found the
following relevant facts. Although the respondent was
aware that the mother was pregnant, he was not notified
of the birth until June, 2010. When contacted by the
department in September, 2010, the respondent stated
that he wanted proof of his paternity. He did not partici-
pate in the September 21, 2010 neglect trial, at which
the child was adjudicated neglected and committed to
the commissioner. The respondent was determined by
paternity testing to be the biological father on October
10, 2010; the child had been in the commissioner’s cus-
tody for five months at that point. The child had ‘‘highly
specialized needs and severe developmental delays
which required a caregiver who was committed to
understanding and caring for those needs.’’ A number
of social workers and service providers proceeded to
work with the respondent to prepare him to address
the child’s complex needs.
Difficulties arose almost immediately after paternity
was established. At the time that paternity was estab-
lished, the respondent lived several hours away in Mas-
sachusetts; the physical separation made visitation and
the scheduling of appointments difficult. The primary
social worker assigned to the case had ‘‘persistent con-
cerns’’ about the respondent’s ability to care for the
child and testified that the child’s ‘‘physical safety was
consistently at risk’’ when he was in the respondent’s
care. The child’s foster parents offered to assist the
respondent in understanding the child’s special needs.
The respondent refused this support. The respondent
was inconsistent with visits and frequently missed
appointments with various service providers. He also
had difficulty working with service providers, some of
whom testified at trial that they felt that the respondent
deliberately had tried to intimidate them.
Initially, all of the respondent’s visits with the child
were supervised. During several supervised visits, the
child was injured and cried hysterically, and, though
no one actually observed the respondent hurt the child,
the primary social worker testified that she suspected
that the respondent caused these injuries.3 Additionally,
the respondent was not receptive to the support that
he was offered to improve his relationship with the
child. When the department located a family therapist
to help the respondent address his specific steps, the
respondent, claiming that he did not need counseling,
rejected the assistance. In the spring of 2011, the respon-
dent became more consistent with visitation, but he
continued to resist the recommendations of the child’s
service providers. One provider, Birth to Three, focused
on the child’s digestive issues. The respondent was
given a list of foods that were safe for the child to eat.
The respondent repeatedly challenged these recom-
mendations and brought inappropriate food to sessions
with the child.
On August 25, 2011, the commissioner filed a petition
to terminate the respondent’s parental rights. The
respondent made several complaints to the department
ombudsman, who conducted a very limited review of
the case. After what the trial court deemed a ‘‘pro-
foundly flawed and incomplete assessment’’ by the
ombudsman, the local department office was directed
to withdraw the petition in April, 2012. The case was
reassigned to a new social worker.
In July, 2012, despite negative reports from the child’s
service providers and the respondent’s reported lack
of progress, the department decided to allow the
respondent unsupervised visitation with the child.
When the visits were unsupervised, the child, who was
at that point two years old, threw violent tantrums when
his service providers arrived at his foster parents’ house
to transport him to the respondent. After these unsuper-
vised visits, the child demonstrated serious distress; he
had nightmares, hit his foster parents, slammed his head
on the floor, and regressed in his bathroom habits.
On October 23, 2012, the respondent filed a motion
to revoke commitment. The commissioner filed a
motion to revoke commitment and modify disposition
to protective supervision on December 31, 2012. The
hearing on these motions began on April 29, 2013, and
continued through January 10, 2014. The court consoli-
dated for hearing a motion for overnight and unsuper-
vised visits with the motion to revoke commitment. On
January 28, 2014, the attorney for the child filed a peti-
tion to terminate the parental rights of the respondent
and the mother. The commissioner initially joined the
respondent in opposing the petition.
On April 21, 2014, the commissioner informed the
court that she had changed her position, and she with-
drew her own motion to revoke commitment. The court
continued the trial until June 2, 2014. On June 2, 2014,
the commissioner reported to the court that it sup-
ported the child’s petition to terminate the respondent’s
parental rights. In its written November 7, 2014 deci-
sion, the court denied the respondent’s motion to
revoke commitment. Thereafter, the court found by
clear and convincing evidence, as to the adjudicatory
phase, that the department had made reasonable efforts
to reunify the respondent with the child and that the
respondent had failed to rehabilitate. As to the disposi-
tion, pursuant to § 17a-112 (j) (2), the court found by
clear and convincing evidence that it was in the best
interest of the child that the parental rights of the
respondent and the mother be terminated. The court
concluded that the respondent’s motion for overnight
visitation and any other outstanding motions were now
moot. This appeal followed. We shall set forth additional
facts as necessary.
I
We first address the respondent’s claims regarding
the court’s conclusions terminating his parental rights.
The respondent claims that the court erred by finding,
for the purposes of General Statutes § 17a-112 (j),4 that
(1) the department had made reasonable efforts toward
reunification, and that (2) the respondent had failed to
achieve a sufficient degree of personal rehabilitation.
We shall address these claims in turn.
The principles that guide our review are as follows.
‘‘A hearing on a petition to terminate parental rights
consists of two phases, adjudication and disposition.
. . . In the adjudicatory phase, the trial court deter-
mines whether one of the statutory grounds for termina-
tion of parental rights [under § 17a-112 (j)] exists by
clear and convincing evidence. If the trial court deter-
mines that a statutory ground for termination exists, it
proceeds to the dispositional phase . . . [in which] the
trial court determines whether termination is in the
best interests of the child.’’ (Footnote omitted; internal
quotation marks omitted.) In re Etta H., 146 Conn. App.
751, 755–56, 78 A.3d 295 (2013).
Our Supreme Court recently clarified the appropriate
standard by which to review trial court judgments termi-
nating parental rights. See In re Shane M., 318 Conn.
569, 587–88, A.3d (2015). ‘‘We have historically
reviewed for clear error both the trial court’s subordi-
nate factual findings and its determination that a parent
has failed to rehabilitate. . . . While we remain con-
vinced that clear error review is appropriate for the trial
court’s subordinate factual findings, we now recognize
that the trial court’s ultimate conclusion of whether a
parent has failed to rehabilitate involves a different
exercise by the trial court. A conclusion of failure to
rehabilitate is drawn from both the trial court’s factual
findings and from its weighing of the facts in assessing
whether those findings satisfy the failure to rehabilitate
ground set forth in § 17a-112 (j) (3) (B).’’ (Citation omit-
ted; emphasis in original; footnote omitted.) Id. Simi-
larly, the court’s determination as to whether the
department made reasonable efforts toward reunifica-
tion is a legal conclusion drawn from the court’s subor-
dinate factual findings. Therefore, we apply a clearly
erroneous standard of review as to the court’s underly-
ing factual findings, and we review the court’s legal
determinations of reasonable efforts and of failure to
rehabilitate for sufficient evidence. See id.
‘‘A [subordinate factual] 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. . . .
[G]reat weight is given to the judgment of the trial court
because of [the trial court’s] opportunity to observe the
parties and the evidence. . . . [An appellate court
does] not examine the record to determine whether the
trier of fact could have reached a conclusion other
than the one reached. . . . [Rather] every reasonable
presumption is made in favor of the trial court’s ruling.’’
(Internal quotation marks omitted.) In re Keyashia C.,
120 Conn. App. 452, 455, 991 A.2d 1113, cert. denied,
297 Conn. 909, 995 A.2d 637 (2010).
A
Reasonable Efforts
The respondent claims that the court erred by
determining that the department had made reasonable
efforts toward reunification. The respondent’s argu-
ment on this point is brief; the respondent essentially
claims that the department’s efforts to reunify were
per se unreasonable because the reunification did not
occur. He argues that ‘‘[t]he [department] went through
a long and exhaustive process of court and blatantly
didn’t take the obvious next steps to reunify. Instead
they dragged the child through long legal battles when
the biological father had been meeting all expectations
and progressing to a level where they should have
moved forward in their placement.’’ We do not agree.
To terminate a parent’s parental rights, ‘‘the depart-
ment is required to prove by clear and convincing evi-
dence that it has made reasonable efforts to reunify the
children with the parent unless the court finds that the
parent is unable or unwilling to benefit from reunifica-
tion efforts. In accordance with [§ 17a-112 (j)], the
department may meet its burden concerning reunifica-
tion in one of three ways: (1) by showing that it made
such efforts, (2) by showing that the parent was unable
or unwilling to benefit from reunification efforts or (3)
by a previous judicial determination that such efforts
were not appropriate. . . . The trial court’s determina-
tion of this issue will not be overturned on appeal
unless, in light of all of the evidence in the record, it
is clearly erroneous.’’ (Citation omitted; internal quota-
tion marks omitted.) In re Ebony H., 68 Conn. App.
342, 348, 789 A.2d 1158 (2002).
We conclude that there was sufficient evidence in
the record to support the court’s conclusion that the
department’s efforts to reunify were reasonable. The
court, in its lengthy November 7, 2014 written decision,
recounted the efforts made by the department. The
court found that these efforts began when the respon-
dent’s paternity was established. The primary depart-
ment social worker assigned to the child’s case ‘‘made
extraordinary efforts to facilitate visitation, coordinate
providers, and implore [the respondent] to take advan-
tage of Birth to Three Services and medical visits so
that he could better understand [the child’s] needs.’’
The respondent had an inflexible schedule, and the
department accommodated his scheduling requests.
The department sought to facilitate a constructive rela-
tionship between the respondent and the child’s foster
parents, who offered to help the respondent to under-
stand the child’s needs and the special care that he
required. The department accommodated the respon-
dent when it reimbursed him for mileage on the occa-
sions that he visited the child, located a single provider
who could work with the respondent on several of the
specific steps in one session, made referrals to provid-
ers, and coordinated the respondent’s visits to Connect-
icut with the child’s appointments with various service
providers to enable the respondent to attend.
The court found that the department had made rea-
sonable efforts—indeed, that it went ‘‘above and
beyond what would be considered reasonable
efforts’’—after evidence showed that the department
made significant efforts to include the respondent in
and to provide the respondent with myriad appropriate
services5 and that department social workers diligently
tried to accommodate the respondent’s scheduling con-
flicts and financial needs. On occasions when the
respondent canceled or missed visits with the child or
his service providers—and such occasions were fre-
quent—the department urged providers to rearrange
their schedules to fit the respondent’s availability. The
department also sent monthly e-mails to the respondent
to ensure that his schedule was accommodated appro-
priately; the respondent often did not reply to these
e-mails, but the department persistently followed up
with him to confirm appointments and visits. Notwith-
standing these efforts, the respondent complained
about his case to the department ombudsman. After
what the court labeled a ‘‘profoundly flawed and incom-
plete assessment of the case’’ by the ombudsman, the
department assigned a new social worker to the case.
The court found that after this change of assignment,
the department continued to accommodate the respon-
dent by ‘‘approv[ing] [the respondent’s] request for an
overnight stay in a hotel every week starting in July,
2012, so that [the respondent] could have visits twice
a week. By October, 2012, [the department] increased
the length of visits and included an unsupervised com-
ponent. [The department] [e]nsured that all services
were paid for, including individual therapy . . . .’’
The record indicates, and the court found, that the
department ensured that the respondent and the child
received services intended to effectuate reunification.
In light of these findings, the respondent’s argument
that, because reunification ultimately did not occur, the
department’s efforts toward that end were unreason-
able is without merit.
We conclude, therefore, that there is sufficient evi-
dence in the record to support the court’s determina-
tion, which was made by clear and convincing evidence,
that the department made reasonable efforts to reunify
the respondent with the child.
B
Personal Rehabilitation
The respondent next claims that the court erred by
concluding that he had not rehabilitated within the
meaning of § 17a-112 (j) (3) (B). The thrust of the
respondent’s appeal is that the court improperly
weighed the evidence before it and ignored testimony
from the witnesses favorable to the respondent’s posi-
tion. We do not agree.
Our statute provides for the termination of parental
rights when a child ‘‘has been found by the [trial court]
. . . to have been neglected 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 . . . and has failed to achieve
such degree of personal rehabilitation as would encour-
age the belief that within a reasonable time, considering
the age and needs of the child, such parent could
assume a responsible position in the life of the child
. . . .’’ General Statutes § 17a-112 (j) (3) (B) (i); see In
re Elvin G., 310 Conn. 485, 506, 78 A.3d 797 (2013)
(‘‘[t]he prior provision of specific steps is required in
any case in which the commissioner seeks to terminate
parental rights on the ground of a parent’s failure to
rehabilitate, regardless of whether the petition is filed
pursuant to § 17a-112 [j] [3] [B] [i] or [ii]’’ [emphasis
in original]).
We previously have explained that the standard for
rehabilitation is set by the ‘‘expectations following the
adjudication and disposition of the prior neglect [pro-
ceeding].’’ (Internal quotation marks omitted.) In re
Shane M., 148 Conn. App. 308, 319–20, 84 A.3d 1265
(2014), aff’d, 318 Conn. 568, A.3d (2015). ‘‘In other
words, whether a parent has rehabilitated under the
statute depends on whether he has met the expectations
giving rise to the specific steps.’’6 Id.
The completion of the specific steps, however, does
not guarantee reunification. See In re Vincent D., 65
Conn. App. 658, 670, 783 A.2d 534 (2001). ‘‘Although a
parent may have participated in the programs recom-
mended pursuant to the specific steps ordered, a court
may properly find that the parent has failed to achieve
rehabilitation.’’ In re Destiny R., 134 Conn. App. 625,
627, 39 A.3d 727, cert. denied, 304 Conn. 932, 43 A.3d
660 (2012). ‘‘The ultimate issue the court must evaluate
is whether the parent has gained the insight and ability
to care for his or her child given the age and needs of
the child within a reasonable time.’’ Id.; see In re Eden
F., 250 Conn. 674, 706, 741 A.2d 873, reargument denied,
251 Conn. 924, 742 A.2d 364 (1999).
The court found by clear and convincing evidence,
in accordance with § 17a-112 (j) (3) (B), that the respon-
dent had ‘‘failed to rehabilitate within a reasonable
period of time, given the age and needs of [the child].’’
In its assessment of the respondent’s rehabilitation, the
court noted that the respondent struggled with the
child’s service providers. ‘‘From the outset, and in a
pattern that has persisted throughout this case, the
[respondent] has blamed others for his own deficienc-
ies. . . . [The respondent] has not been able to demon-
strate a genuine ability to work with providers with
whom he does not agree . . . .’’ The court described
the respondent as controlling and manipulative and
referred to specific instances in which the respondent
made misrepresentations to the department and to the
child’s various service providers.
The court also doubted the respondent’s ability to
care adequately for his son. Despite years of working
with the child’s service providers, ‘‘the manifestations
of [the respondent’s] inability and/or refusal to meet
[the child’s] need to grow and thrive with respect to
his emotional, psychological, and/or physical need for
safety and security and with respect to his emerging
and ever evolving need for independence are many
. . . .’’ The court could not ‘‘reconcile how [the respon-
dent] could safely or appropriately care for [the child]
when, even in January 2013, the simplest of instructions,
such as being sure to hold [the child’s] hand or be close
when he attempts to walk down the stairs, was ignored
or required repeated assertions and reminders over sev-
eral weeks’ time.’’ On another occasion, in April, 2013,
a service provider testified that she observed the
respondent order the child to keep food in his mouth
for up to fifteen minutes when the child was unable to
finish his meals, despite her insistence that the respon-
dent should not force the child to eat when he was
not hungry.
Given what the court termed the respondent’s ‘‘long-
standing persistent issues with controlling behaviors,’’
it was troubled by a series of injuries that the child
sustained while spending time with the respondent.
Beginning in 2012, a series of marks and bruises
appeared on the child. The court noted that, although
some of these injuries may have been the result of
normal toddler activity, one service provider testified
that the respondent’s explanations for how these injur-
ies occurred were confusing and illogical. The child’s
foster parents increasingly were concerned with marks
and bruises located in unusual places; for example, the
foster parents reported that the child had bruises on
his forearm that resembled a handprint. The child
reported to his foster parents that ‘‘Daddy Roger’’ was
‘‘mean’’ to him and hit him.
Finally, the court cited the child’s need for perma-
nency and security as an overriding concern in its
assessment of the respondent’s rehabilitation. See In
re Zion R., 116 Conn. App. 723, 739, 977 A.2d 247 (2009)
(holding that it was proper to consider child’s young
age and need for permanency in finding that respondent
had not achieved rehabilitation). The court was ‘‘con-
vinced that [the respondent] cannot and will not handle
[the child’s extreme physical reactions and behaviors]
appropriately and that [the child] will be at extreme
risk if ever in [the respondent’s] exclusive care.’’
The court then listed specific reasons why it did not
find that the respondent had sufficiently rehabilitated,
including the respondent’s: ‘‘(1) . . . inability to tune
into and/or understand [the child’s] needs, both special-
ized needs and the ordinary developmental needs of the
child, (2) . . . resistance to and aggression in receiving
support and training services from various providers
to help him understand and address the child’s ever
evolving needs, and (3) . . . refusal to accept that indi-
viduals who are highly trained and/or experienced child
care professionals . . . have far greater, superior and
invaluable information, insights and understanding of
[the child’s] needs which [the respondent] also required
in order for the child to successfully transition into
his care.’’
The respondent essentially disputes the court’s deter-
mination of credibility; however, it was within the prov-
ince of the trial court to credit or to discredit testimony
as it deemed fit. The respondent claims that the court
did not properly credit the testimony of Ralph Balducci,
a court-appointed psychologist, Bruce Freedman, the
respondent’s psychotherapist, and Collette Smith, a par-
ent coach. He also claims that the court ignored por-
tions of the testimony of parent coach Kimberley Browe
that indicated that he had achieved rehabilitation. Our
function is to determine whether the court’s findings
were factually supported. It is not within our purview
to ‘‘retry the case or pass upon the credibility of the
witnesses.’’ (Internal quotation marks omitted.) In re
Jason M., 140 Conn. App. 708, 719, 59 A.3d 902, cert.
denied, 308 Conn. 931, 64 A.3d 330, cert. denied, U.S.
, 134 S. Ct. 701, 187 L. Ed. 2d 564 (2013). ‘‘It is well
established that [i]n a case tried before a court, the
trial judge is the sole arbiter of the credibility of the
witnesses and the weight to be given specific testimony.
. . . The credibility and the weight of expert testimony
is judged by the same standard, and the trial court is
privileged to adopt whatever testimony [it] reasonably
believes to be credible. . . . The trier may accept or
reject, in whole or in part, the testimony of an expert
offered by one party or the other.’’ (Internal quotation
marks omitted.) In re Jason R., 129 Conn. App. 746,
772–73, 23 A.3d 18 (2011), aff’d, 306 Conn. 438, 51 A.3d
334 (2012). The respondent has pointed to no part of
the record that indicates that the court acted clearly
erroneously in evaluating the credibility of witnesses
and weight to be accorded their opinions. We will not
second-guess the court’s opinion of these witnesses.
Although we acknowledge the respondent’s efforts
to satisfy the specific steps, the court’s conclusion that
the respondent did not achieve rehabilitation sufficient
to warrant reunification is amply supported by factual
findings in the record and meticulously explained in
the court’s memorandum of decision. Thus, the court’s
determination that the respondent did not rehabilitate
sufficiently for the purposes of § 17-112 (j) (3) (B) was
supported by sufficient evidence.
II
We next address the respondent’s claim that the court
violated the double jeopardy clause of the federal con-
stitution by permitting the same witnesses who had
testified at a 2012 hearing on a motion to revoke com-
mitment to testify again at the trial resulting in termina-
tion. This claim is without merit. ‘‘It is well settled
that prosecutions or convictions for double jeopardy
purposes arise only from proceedings that are essen-
tially criminal.’’ (Internal quotation marks omitted.)
State v. Burnell, 290 Conn. 634, 645, 966 A.2d 168 (2009).
Our Supreme Court has made it clear that the double
jeopardy clause does not apply to termination of paren-
tal rights cases. Cookson v. Cookson, 201 Conn. 229,
237, 514 A.2d 323 (1986) (stating that ‘‘parents do not
have a ‘double jeopardy’ defense against repeated state
termination efforts’’). Thus, this claim is without merit.
III
The respondent also claims that he suffered ‘‘extreme
prejudice’’ as a result of the commissioner’s change in
her position of support for reunification to a position
of support for the termination of parental rights. The
respondent argues that the commissioner changed her
position only because she learned of an investigation
into allegations of the respondent’s abuse of a younger
son in Massachusetts.7 A change in the commissioner’s
position, however, is not a basis to overturn judgment
rendered by a court after it weighed the totality of
evidence presented at trial.
Moreover, the trial court’s decision in this case was
not premised on any finding by the Massachusetts
Department of Children and Families; the court referred
to the finding as ‘‘cumulative evidence.’’ Furthermore,
the commissioner was free to change her position for
whatever reason. For these reasons, this claim is with-
out merit.
IV
Finally, the respondent claims that the child’s guard-
ian ad litem had a conflict of interest and was biased
against the respondent. The respondent did not raise
this issue before the trial court; therefore, we decline
to review it. See Practice Book § 60-5 (‘‘[t]he court shall
not be bound to consider a claim unless it was distinctly
raised at the trial or arose subsequently to the trial’’);
see also In re Anna Lee M., 104 Conn. App. 121, 124
n.2, 931 A.2d 949, cert. denied, 294 Conn. 939, 937 A.2d
696 (2007).
Accordingly, the trial court did not err in terminating
the respondent’s parental rights.
The judgment is affirmed.
In this opinion the other judges 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.
** November 20, 2015, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
We refer in this opinion to the respondent father as the respondent and
to the respondent mother as the mother. The mother did not appeal from
the judgment terminating her parental rights.
2
The respondent also claims that the court erroneously declined to decide
various motions, including a motion for overnight visitation. The court did
not rule on these motions, but, rather, found them moot. ‘‘Having terminated
[the respondent’s] parental rights, the motion for overnight visitation and
any outstanding motions relative to visitation are now moot.’’ Because we
affirm the court’s termination of the respondent’s parental rights, we agree
with the court that these motions are moot.
3
The court explained the apparent inconsistency between the supervised
nature of the visits and the fact that the child was injured: ‘‘[The primary
social worker] credibly described . . . how she could not see what actually
happened to [the child] because on two occasions, [the respondent] posi-
tioned himself so he could not be fully seen. This court has no difficulty,
therefore, making a reasonable inference that [the respondent] was responsi-
ble for hurting [the child].’’
4
General Statutes § 17a-112 (j) provides in relevant part that the court
‘‘may grant a petition [to terminate parental rights] if it finds by clear and
convincing evidence that (1) the Department of Children and Families has
made reasonable efforts to locate the parent and to reunify the child with
the parent . . . unless the court finds in this proceeding that the parent is
unable or unwilling to benefit from reunification efforts . . . (2) termination
is in the best interest of the child, and . . . (3) . . . (B) the child (i) has
been found by the Superior 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 . . . and has failed to achieve such degree of
personal rehabilitation as would encourage the belief that within a reason-
able time, considering the age and needs of the child, such parent could
assume a responsible position in the life of the child . . . .’’
5
The services that the department provided to the respondent and the
child included individual therapy, family therapy, physical therapy with
multiple providers to address different issues, speech therapy, feeding ther-
apy, parent coaching, one-to-one parenting services, and other parent educa-
tion services. These services were intended either as direct support for the
respondent or for the child. The respondent was encouraged to partake of
the services that were directed at the child’s care and treatment of his
special needs.
6
The respondent was provided with specific steps. These steps included:
(1) cooperate with recommended service providers for substance abuse
treatment, (2) attend all appointments set by the department, (3) avoid
further involvement with the criminal justice system, (4) apprise the depart-
ment of his whereabouts, (5) secure and maintain adequate housing and
legal income, (6) participate in counseling and make progress toward the
identified parenting and individual treatment goals, and (7) visit with the
child as often as permitted.
7
According to the respondent, these allegations later were determined to
be without a reasonable basis. Apparently that determination was made too
late to be presented to the trial court in the present case, and, in any event,
the court apparently was not aware of later determinations in Massachusetts.