In re Anaishaly C. , 190 Conn. App. 667 ( 2019 )

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IN RE ANAISHALY C. ET AL.*
(AC 41830)
(AC 41889)
DiPentima, C. J., and Keller and Elgo, Js.
Syllabus
The respondent parents filed separate appeals to this court from the judg-
ments of the trial court terminating their parental rights with respect
to their minor children A and K. The trial court had found, inter alia, that
the children came into the custody of the petitioner, the Commissioner
of Children and Families, because of the respondents’ problems with
marijuana use, domestic violence and transience. The court considered
the respondents’ refusal to submit to substance abuse testing, concerns
over domestic violence, and the lack of suitable housing when it con-
cluded that the respondents had failed to achieve a sufficient degree of
personal rehabilitation since the Department of Children and Families
began providing reunification services to them. Held:
1. The respondents could not prevail on their claim that there was insufficient
evidence for the trial court to find by clear and convincing evidence
that they had each failed to achieve the degree of personal rehabilitation
as would encourage the belief that, within a reasonable time, they could
assume a responsible position in the lives of the children: the respon-
dents’ claim that there was no evidence that their use of marijuana
affected their ability to parent was unavailing, as they offered no author-
ity to support their claim that the movement toward legalization of
marijuana was relevant to the law the court was required to apply in
evaluating the evidence in this case, the respondents’ personal history
of substance abuse, which had included the illegal use of marijuana, as
well as other substances, had properly informed and determined their
specific steps, which, in turn, were prerequisites to their own rehabilita-
tion, the current movement and controversy over the legalization of
marijuana in the criminal justice context was irrelevant because there
is a vast difference in the purpose and application of criminal laws
designed to protect the general public as compared to specific steps
tailored to parents whose parenting issues are precisely why they had
come to the attention of the department and the child protection court
in the first instance, and the court properly found that the evidence
showed the respondents’ significant lack of insight about the correlation
between substance abuse and intimate partner violence, as well as their
failure to recognize how their use of illegal substances had harmed the
children; moreover, the respondents’ claim that there was insufficient
evidence for the trial court to conclude that they had failed to rehabilitate
on the basis of their problems with domestic violence was also unavail-
ing, because although the court did not find that there were any instances
of domestic violence since 2016, it was reasonable for the court to infer
that the respondent father had not been able to control his temper or
anger, and the record indicated that the court did not base its determina-
tion regarding failure to rehabilitate solely on the respondents’ problems
with domestic violence; furthermore, the respondents could not prevail
on their claim that their housing situation did not support the trial
court’s ultimate conclusion that they had failed to rehabilitate, as the
respondents’ housing situation was one of multiple factors the court
considered when it made its decision, and although the respondents
were living with the father’s mother, there was evidence, which the
court credited, to support its conclusion that such housing was neither
suitable nor permissible.
2. The respondents could not prevail on their claim that the trial court
improperly determined that the termination of their parental rights was
in the best interests of the children, which was based on their claim
that the court’s conclusion was improper in light of its findings that
they had made progress in their rehabilitation and that they had a strong
bond with the children: that court found that the respondents, despite
receiving many supportive services during the lengthy pendency of this
matter, did not resolve the serious and chronic problems that resulted
in the children’s commitment to the custody of the commissioner, and
that the children required the security of a safe and stable, permanent
home, which their current placement in a foster home provided to
them, and which the respondents remained unable to provide; moreover,
although the court found that the respondents had made some progress
in their rehabilitation efforts, it also found that despite successfully
completing certain programs, the respondents were unsuccessful or
noncompliant with others since the department removed the children
from their care, and even when there is a finding of a bond between a
parent and a child, as the court found in the present case, it still may
be in the child’s best interest to terminate parental rights.
Argued January 16—officially released June 10, 2019**
Procedural History
Petitions by the Commissioner of Children and Fami-
lies to terminate the respondents’ parental rights with
respect to certain of their minor children, brought to
the Superior Court in the judicial district of Hartford,
Juvenile Matters, and tried to the court, Dyer, J.; judg-
ments terminating the respondents’ parental rights,
from which the respondents filed separate appeals with
this court. Affirmed.
David J. Reich, for the appellant in AC 41830 (respon-
dent father).
Joshua Michtom, assistant public defender, for the
appellant in AC 41889 (respondent mother).
Rosemarie T. Weber, assistant attorney general, with
whom, on the brief, were George Jepsen, former attor-
ney general, and Benjamin Zivyon, assistant attorney
general, for the appellee in both cases (petitioner).
Opinion
ELGO, J. The respondent mother (mother) and the
respondent father (father)1 appeal from the judgments
of the trial court terminating their parental rights with
respect to their minor children, Anaishaly C. and Khria-
nalis C.,2 and appointing the petitioner, the Commis-
sioner of Children and Families (commissioner), as the
statutory parent.3 The respondents contend that the
court improperly concluded that (1) they failed to
achieve the requisite degree of personal rehabilitation
required by General Statutes § 17a-112, and (2) termina-
tion of their parental rights was in the best interests of
the children. We affirm the judgments of the trial court.
The following facts, which the trial court found by
clear and convincing evidence, and procedural history
are relevant to the resolution of this appeal. On August
28, 2012, the father was arrested on charges of assault
in the third degree and disorderly conduct after he
punched and kicked the mother during an argument at
their residence, leaving a boot shaped imprint on her
back. The mother was transported to the hospital by
ambulance. Although the father told police officers that
he had consumed several drinks, the police report noted
his ability to articulate his thoughts clearly and calmly.
According to the police report, the mother told officers
that Anaishaly, who was born in June, 2011, and was
fourteen months old at the time, was living with the
respondents and had not witnessed the assault. There-
after, a no contact protective order was issued by the
criminal court. The order barred the father from initiat-
ing any contact with the mother and required him to
vacate the home that they shared.
On October 21, 2014, the mother met with a Depart-
ment of Children and Families (department) social
worker and its domestic violence consultant. At that
time, the mother indicated that she was afraid of the
father and informed the department about his ongoing
abuse. She told the department personnel about the
incident that occurred on August 28, 2012, and about
another occasion in which the father had choked and
had assaulted her, which left a scar on her forehead.
On October 22, 2014, after the mother signed a safety
plan in which she agreed to have no contact with the
father,4 the department brought her and Anaishaly to a
domestic violence shelter. During October, 2014, the
mother received drug treatment because she had ren-
dered a positive urine test during a substance abuse
assessment.
On October 27, 2014, the department learned that the
mother and Anaishaly were no longer at the shelter
after a department worker called the cell phone number
provided by the mother and the father answered. He
stated that he was at work and that the mother was at
home with Anaishaly. Later that day, the mother spoke
with a department worker. She reported that she had
bipolar disorder, expressed her reluctance to return to
the shelter, and recanted the allegations that the father
had abused her physically. On that same date, the com-
missioner assumed temporary custody of Anaishaly,
who was then three years old, pursuant to an adminis-
trative ninety-six hour hold. On October 30, 2014, the
commissioner filed a neglect petition as to Anaishaly
and obtained an ex parte order of temporary custody.
That order was sustained at a hearing held on November
5, 2014.5
At 4:11 a.m. on January 1, 2015, police were called
to the respondents’ address. The police report indicated
that the father had kicked in the front door of the
apartment and attempted to punch the mother.
Responding officers observed the damaged door, over-
turned furniture, and other vandalism. The father was
not at the scene when the police arrived. The police
returned to the residence again at approximately 6 a.m.,
at which time the mother told the police that she had
received a telephone call from the father, who had
threatened to ‘‘kill her’’ and ‘‘burn down’’ the apartment.
(Internal quotation marks omitted.) The police discov-
ered the father on the premises and arrested him on
charges of threatening, criminal mischief, disorderly
conduct, and possession of a hallucinogenic substance.
The police report noted that the father was ‘‘acting like
he had consumed some kind of drug(s) and alcohol.’’
Tablets, later identified as the illegal drug ecstasy, were
found on the father’s person. The police report also
noted that the father was combative during booking.
On January 2, 2015, another full no contact protective
order was issued against the father, which prohibited
him from having any contact with the mother and
required him to stay 100 yards away from her. He subse-
quently was convicted of threatening and received a
six month suspended jail sentence as a result of this
incident.
Anaishaly was adjudicated neglected and committed
to the commissioner’s custody on February 24, 2015.
Thereafter, the department referred both respondents
to various rehabilitative services in order to facilitate
their reunification with Anaishaly. During 2015, the
mother successfully completed an intimate partner vio-
lence course, substance abuse treatment, and a parent-
ing education course.
The father’s progress reports revealed mixed results.
Although a department report received on March 18,
2015, indicated that he had attended all sessions in a
parenting education course, he did not appear to gain
insight about ‘‘how to effectively parent and display an
image of a good father to his child.’’ He also received
drug treatment, from which he was discharged on Sep-
tember 29, 2015. Although his drug tests were negative
on August 3, August 17 and September 28, 2015, he
tested positive for opiates on September 8, 2015, and
positive for oxycodone on September 14, 2015. The
father claimed that the positive urine tests resulted from
his use of his mother’s prescription pain killers to treat
a back injury. Following his completion of a family
violence program on November 17, 2015, the depart-
ment believed that he made progress in that program.
Khrianalis was born in August, 2015. After being dis-
charged from the hospital, she lived with the respon-
dents. Approximately six months after Khrianalis was
born, the department referred the respondents to the
Village for Children & Families (Village) for reunifica-
tion services in an effort to reunify Anaishaly with the
respondents and Khrianalis. The Village began provid-
ing reunification services on March 3, 2016. On the basis
of the respondents’ satisfactory participation with the
Village, the department returned Anaishaly to the
respondents’ home on a trial basis on May 31, 2016.
Approximately one month later, on June 28, 2016,
neighbors overheard the father cursing at the mother,
followed by loud noises coming from the respondents’
apartment. Several tenants were concerned that it
sounded like the father was physically abusing the
mother. A department social worker met with the
respondents the next day. Both respondents denied that
there had been any physical violence. They told the
department social worker that they had not argued but
had discussed an accusation that the father had been
seen with another woman earlier that day. The depart-
ment social worker also learned that the mother was
pregnant. The department social worker spoke with
Anaishaly, who was five years old at the time. Anaishaly
reported to the department social worker that she and
Khrianalis had stayed the previous night at their pater-
nal grandmother’s home. She also reported that she had
observed the mother and the father arguing and had
observed the father hit the mother. Anaishaly pro-
ceeded to describe verbally and physically where and
how the father hit the mother, pointing to her left cheek
when asked where the mother was hit. She showed an
open hand and performed a slapping motion when she
was asked how the father hit the mother. In response
to Anaishaly’s disclosure, ‘‘[t]he [respondents] openly
blamed Anaishaly for the current situation, saying she
has lied about witnessing violence and has lied on a
frequent basis.’’
As a result of this incident, the department returned
five year old Anaishaly to foster care on June 29, 2016.
On that same date, the commissioner assumed tempo-
rary custody of almost ten month old Khrianalis pursu-
ant to an administrative ninety-six hour hold. On July
1, 2016, the commissioner filed a neglect petition as to
Khrianalis and obtained an ex parte order of temporary
custody. That order was sustained on July 8, 2016. Khri-
analis was adjudicated neglected on September 8, 2016.
The children have remained in department foster care
continuously from June 29, 2016, to the time of trial
and have been placed with their paternal stepuncle,
Jose Q., and his domestic partner.
On July 1, 2016, the court issued amended specific
steps to the respondents. They were ‘‘ordered, inter
alia, to cooperate with counseling and gain insight about
how domestic violence affects their children; abstain
from illegal drugs; submit to random drug testing; sub-
mit to substance abuse evaluations and follow treat-
ment recommendations; visit the children as often as
permitted; and obtain suitable housing.’’ To facilitate
their compliance with the treatment goals and reunifica-
tion, the department referred the respondents to appro-
priate services and treatment that focused on their
problems with substance abuse, parenting skills, inti-
mate partner violence, and lack of suitable housing.
On November 26, 2016, the mother gave birth to
another daughter, Knitzeyalis.6 Both the mother and
the child’s meconium tested positive for marijuana. On
November 30, 2016, the commissioner obtained an ex
parte order granting her temporary custody of Knitzey-
alis. That order was sustained by the court at a hearing
held on December 9, 2016.7 Knitzeyalis was adjudicated
neglected and committed to the commissioner’s cus-
tody on January 3, 2017. She has remained in the com-
missioner’s custody and guardianship from the date of
her removal through the time of trial and lives with her
sisters in the foster home of Jose Q.
As the court indicated in its memorandum of deci-
sion, ‘‘[e]xtensive evidence was presented during this
trial about the [respondents’] varying degrees of cooper-
ation and involvement with services during the past
two years.’’ On September 29, 2016, prior to the birth
of Knitzeyalis, the department referred the respondents
to the Intimate Partner Violence-Family Assessment
Intervention Response (IPV-FAIR) program at Commu-
nity Health Resources. The service provider informed
the department that the respondents were discharged
from the program on January 3, 2017, due to poor
attendance.
On May 5, 2017, the commissioner filed termination
of parental rights petitions as to the respondents on
behalf of the children. The department had been provid-
ing reunification services since October, 2014, when
Anaishaly was first placed into foster care at three years
old. At the time the petitions were filed, Anaishaly was
nearly six years old, and Khrianalis, who was placed
in foster care when she was almost ten months old,
was twenty months old.
The respondents subsequently reengaged in the IPV-
FAIR program on May 22, 2017, and successfully com-
pleted it on November 1, 2017. They attended the IPV-
FAIR program ‘‘regularly, participated consistently in
the sessions, were cooperative, and made progress in
the program.’’8 In a discharge summary dated November
11, 2017, an outreach therapist at Community Health
Resources ‘‘recommended that [the father] should
undergo a mental health assessment and follow treat-
ment guidelines to deal with [the] underlying trauma
issues in his life that appear to cause his reactive behav-
ior.’’ The father had not initiated this treatment as of
the conclusion of trial.
On October 24, 2017, while the termination of paren-
tal rights petitions were still pending, the department
referred the family to the Village for a reunification
readiness assessment to determine if the children could
be safely returned to the respondents’ care. Chastity
Chandler, who holds a master’s degree in social work
and is employed as a family support specialist at the
Village, was assigned to conduct the thirty day evalua-
tion. She met with the family on eight occasions. She
observed four visits between the respondents and the
children and also visited the family home four times.
The court found that Chandler ‘‘credibly reported that
[the respondents] actively engaged with the children
during the visits and that [the respondents] were capa-
ble of meeting the children’s basic needs. . . . She
credibly testified that the respondents displayed love
and affection for the children during these contacts and
that a strong bond exists between the [respondents]
and their children. . . . Chandler testified credibly that
Anaishaly articulated her desire to live with [the respon-
dents].’’ (Citations omitted.)
Chandler, however, did not recommend reunifica-
tion. Notwithstanding the pendency of the termination
of parental rights petitions, both respondents were non-
compliant with random drug testing. The father cooper-
ated with only one out of twelve random drug screens.
He did not appear for his first random drug test on
September 8, 2017. He submitted a sample that was
negative for all illicit substances on September 19, 2017,
but he then failed to attend all subsequent random test-
ing sessions. Further, the father told Chandler that he
would continue smoking marijuana after the children
were returned to his care because he did not believe
that using it was harmful. The mother refused to give
a urine sample when one was requested on October 25,
2017. Both respondents refused to submit to segmented
hair tests.
On November 21, 2017, Chandler held a ‘‘closing
meeting,’’ which was attended by the respondents and
department personnel, where she explained the out-
come of the Village’s reunification assessment to the
respondents. During the meeting, the father became
upset, used profanity, made a threat to harm a depart-
ment social worker, and threatened that he would ‘‘blow
up’’ the department office.
After the reunification assessment, in December,
2017, the department asked both respondents to submit
to segmented hair drug testing. The mother did not
attend scheduled appointments for hair testing on either
December 21 or December 26, 2017. A hair sample was
collected from the mother on January 2, 2018, which
came back negative. The mother admitted, however,
that she had used marijuana sometime between Christ-
mas and New Year’s Day.9 The father appeared for test-
ing on December 26, 2017, but because he had cut his
hair, he could not provide a testable sample. Between
that date and trial, the father had been scheduled for
four appointments for hair testing, and he had still not
been tested.
The court also found that the respondents failed to
secure adequate housing. At the time of the reunifica-
tion assessment, in the fall of 2017, the respondents
were residing in a five bedroom apartment that was
leased by the father’s mother, who was the recipient
of section 8 housing benefits whereby program rules
prohibited the respondents from living with her in the
apartment. Consequently, the court found that ‘‘at the
time of the readiness reunification assessment, the
[respondents] lacked stable housing for [the children
and Knitzeyalis].’’ In making these findings, the court
also found relevant that in February, 2017, the mother
was dismissed from a supportive housing assistance
program, which provided her with rental assistance,
due to noncompliance with program rules. The program
allowed for two warnings of noncompliance, and the
mother was issued three warnings due to disturbances
at the home and her failure to attend meetings.
Through the date of trial, the children resided with
their foster parents, their foster parents’ two children,
and Knitzeyalis. The court found that the children have
bonded well with their foster parents and other family
members. Although Jose Q. and his domestic partner
initially told the department that they would not serve
as long-term placement resources, they have since
informed the department that they are willing to adopt
the children. The court credited a department social
study, which opined that the children ‘‘need permanent
and stable living arrangements in order to grow and
develop in a healthy manner.’’
A trial on the termination of parental rights was held
on January 11, April 12 and May 1, 2018. On May 22,
2018, the court terminated the respondents’ parental
rights and appointed the commissioner as the children’s
statutory parent. This appeal followed.
I
The respondents first claim that there was insuffi-
cient evidence for the trial court to find by clear and
convincing evidence that they have each failed to
achieve the degree of personal rehabilitation that would
encourage the belief that, within a reasonable time, they
could assume a responsible position in the lives of the
children.10 We disagree.
We begin by setting forth the applicable standard
of review and general principles. ‘‘The trial court is
required, pursuant to § 17a-112,11 to analyze the [par-
ents’] rehabilitative status as it relates to the needs of
the particular child, and further . . . such rehabilita-
tion must be foreseeable within a reasonable time. . . .
Rehabilitate means to restore [a parent] to a useful and
constructive place in society through social rehabilita-
tion. . . . The statute does not require [a parent] to
prove precisely when [he or she] will be able to assume
a responsible position in [his or her] child’s life. Nor
does it require [him or her] to prove that [he or she]
will be able to assume full responsibility for [his or her]
child, unaided by available support systems. It requires
the court to find, by clear and convincing evidence, that
the level of rehabilitation [he or she] has achieved, if
any, falls short of that which would reasonably encour-
age a belief that at some future date [he or she] can
assume a responsible position in [his or her] child’s life.
. . . In addition, [i]n determining whether a parent has
achieved sufficient personal rehabilitation, a court may
consider whether the parent has corrected the factors
that led to the initial commitment, regardless of whether
those factors were included in specific expectations
ordered by the court or imposed by the department.
. . .
‘‘When a child is taken into the commissioner’s cus-
tody, a trial court must issue specific steps to a parent
as to what should be done to facilitate reunification
and prevent termination of parental rights.’’ (Citations
omitted; footnote added; internal quotation marks omit-
ted.) In re Shane M., 318 Conn. 569, 585–86, 122 A.3d
1247 (2015). ‘‘Specific steps provide notice and guid-
ance to a parent as to what should be done to facilitate
reunification and prevent termination of rights. Their
completion or noncompletion, however, does not guar-
antee any outcome. A parent may complete all of the
specific steps and still be found to have failed to rehabil-
itate. . . . Conversely, a parent could fall somewhat
short in completing the ordered steps, but still be found
to have achieved sufficient progress so as to preclude
a termination of his or her rights based on a failure to
rehabilitate.’’ (Citation omitted.) In re Elvin G., 310
Conn. 485, 507–508, 78 A.3d 797 (2013).
‘‘While . . . clear error review is appropriate for the
trial court’s subordinate factual findings . . . 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). Accordingly . . . the
appropriate standard of review is one of evidentiary
sufficiency, that is, whether 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 jus-
tify its [ultimate conclusion]. . . . When applying this
standard, we construe the evidence in a manner most
favorable to sustaining the judgment of the trial court.’’
(Emphasis in original; footnote omitted; internal quota-
tion marks omitted.) In re Shane M., supra, 318
Conn. 587–88.
‘‘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.’’ (Emphasis
altered.) In re Jayce O., 323 Conn. 690, 716, 150 A.3d
640 (2016).
The court found by clear and convincing evidence
that the department’s offer and provision of services
from 2015 through the end of the trial ‘‘constituted
reasonable and timely efforts by the department to
assist each parent’s rehabilitation and to reunify the
family.’’12 It also found by clear and convincing evidence
that the respondents had each ‘‘failed to achieve the
degree of personal rehabilitation that would encourage
the belief that, within a reasonable time, considering
[the] ages and needs of [the children], they could
assume a responsible position in the lives of those chil-
dren.’’ Our review of the record in light of the lengthy
recitation of the factual findings made by the court
convinces us that the extensive evidence credited by
the court supports its determination.
The court found that ‘‘[the children] came into [the
commissioner’s] custody because of [the respondents’]
problems with marijuana use, domestic violence and
transience. Anaishaly was twice removed from the cus-
tody of [the respondents]. She has been committed to
the [commissioner’s custody] since February 24, 2015.
Khrianalis followed her sister into the child protection
system on June 29, 2016. Both children have lived in
their current foster home since that date.’’ The court
concluded ‘‘[b]ased on all of the evidence presented
. . . that [the respondents] are unable or unwilling to
benefit from the extensive assistance that [the depart-
ment] and other agencies have offered and provided to
them while the children’s cases have been pending.’’
As the court explained in its memorandum of decision:
‘‘[The department] has offered and provided multiple
reunification services to [the respondents] on an ongo-
ing basis since October, 2014. These have included men-
tal health counseling, substance abuse evaluations,
counseling and testing, parenting education, intimate
partner violence programs, supervised visitation, case
management, supportive housing assistance, and reuni-
fication readiness assessments and services. The court
has found that these services were timely and consti-
tuted reasonable efforts to reunify the family. The
respondents successfully completed some programs,
but they were unsuccessful, or noncompliant, with oth-
ers. One [department] witness offered an apt analogy
during her testimony when she likened the twists and
turns of this case to a roller coaster ride. There were
high points when [the respondents] appeared to be mak-
ing progress, followed by low points when the [respon-
dents], who were twice assessed for the return of the
children, engaged in negative behavior that stopped
reunification in its tracks.’’
In challenging these findings, both respondents argue
that there is no evidence that their use of marijuana
affected their ability to parent, and that ‘‘because the
law concerning [the criminalization of] marijuana has
changed, this change must also be reflected in the law
concerning child protection . . . .’’ We are not per-
suaded.
First, the respondents offer no authority to support
their claim that the movement toward legalization of
marijuana is relevant to the law the court was required
to apply in evaluating the evidence in this case. Indeed,
our Supreme Court has held otherwise. The court in
In re Shane M., supra, 318 Conn. 596 n.23, found ‘‘unper-
suasive the respondent’s claim that, even properly
drawn, [the] inference [that he had continued to use
marijuana based on his proven past marijuana use and
his refusal to submit to drug testing] did not prove that
he failed to rehabilitate because criminal penalties for
possession of marijuana have been reduced and the
legislature has approved the use of marijuana for pallia-
tive medical purposes.’’ Our Supreme Court reasoned
that, ‘‘regardless of marijuana’s recent limited legalized
status, the respondent was ordered to refrain from using
it due to his extensive personal history of substance
abuse.’’ Id. Similarly, in the present case, the respon-
dents’ personal history of substance abuse, which has
included the illegal use of marijuana, as well as other
substances, has properly informed and determined their
specific steps, which, in turn, are prerequisites to their
own rehabilitation. See id.; see also In re Elvin G.,
supra, 310 Conn. 507–508 (‘‘[s]pecific steps provide
notice and guidance to a parent as to what should be
done to facilitate reunification and prevent termination
of rights’’).
Second, there is a vast difference in the purpose and
application of criminal laws designed to protect the
general public as compared to specific steps tailored
to parents whose parenting issues are precisely why
they have come to the attention of the department and
the child protection court in the first instance. In the
same way that the general public may legally consume
alcohol while those who are alcohol dependent may
not enjoy the same freedom, less restrictive laws around
marijuana use for the general public13 have no bearing
on respondents whose abuse of substances, including
marijuana, has required treatment and abstention. The
current movement and controversy over the legalization
of marijuana in the criminal justice context is simply
irrelevant.
Further, the respondents’ focus on the legalization
of marijuana operates on the assumption that their
admissions of marijuana use are credible evidence of
the extent of their rehabilitation. Understood in the
context of the respondents’ failure to cooperate with
drug testing, evidence amounting to the respondents’
self-report of marijuana use was simply that—a self-
serving assessment of their own rehabilitative status—
which the court was free not to credit. In fact, the proper
measure of their compliance with the requirement that
they refrain from abusing substances is in their ability
to provide negative and randomized drug testing results
over a sustained period of time, which they failed to
do. The respondents knew full well that the failure
to submit to drug testing violated their specific steps,
which, in turn, would impede reunification with their
children. Understanding these consequences, and not-
withstanding the pending termination petitions, the
respondents nevertheless chose not to comply, which
the court properly considered in finding that the respon-
dents failed to rehabilitate. In observing that the mother
‘‘was also aware that her fitness to resume custody of
[the children and Knitzeyalis] was being evaluated when
she refused to submit to drug testing in October, 2017,’’
the court gave appropriate weight to this factor when
considering whether the respondents were willing and
able to reunify with the children.
We simply do not find fault in the court’s finding that
‘‘the [respondents’] refusal to comply with drug testing
during the assessment period, and the father’s attitude
about continued marijuana use, [was] particularly dis-
turbing. This evidence reveals each parent’s significant
lack of insight about the correlation between substance
abuse and intimate partner violence, as well as their
failure to recognize how their use of illegal substances
has harmed [the children] and Knitzeyalis.’’
The respondents also argue that there was insuffi-
cient evidence for the court to conclude that they had
failed to rehabilitate on the basis of their problems with
domestic violence, noting that there were no incidents
of intimate partner violence since 2016, and that they
had each completed domestic violence programs.14 We
reiterate that, on review, we must determine ‘‘whether
the trial court could have reasonably concluded, upon
the facts established and the reasonable inferences
drawn therefrom, that the cumulative effect of the evi-
dence was sufficient to justify its [ultimate conclusion].’’
(Emphasis added; internal quotation marks omitted.)
In re Shane M., supra, 318 Conn. 588.
The record indicates that the court did not base its
determination regarding failure to rehabilitate solely on
the respondents’ problems with domestic violence. The
court expressed its specific concern with the father’s
history of domestic violence and the link between at
least two of those instances and his use ‘‘of alcohol and/
or illegal controlled substances.’’ Although the court
did not find that there were any instances of domestic
violence since 2016, it was reasonable for the court to
infer that the father has not been able to control his
temper or anger. The court specifically noted ‘‘the simi-
larity between [the father’s] conduct on January 1, 2015,
when he threatened to kill [the mother] and burn down
her apartment, and his behavior on November 21, 2017,
when he threatened to cause physical harm to [a depart-
ment social worker] and blow up the [department]
office.’’ That November 21, 2017 incident occurred after
the respondents had completed the IPV-FAIR program.
The respondents also argue that their housing situa-
tion did not support the court’s ultimate conclusion
that they have failed to rehabilitate. We again note that
we must look at the cumulative effect of the evidence;
In re Shane M., supra, 318 Conn. 588; and that the
respondents’ housing situation was but one of multiple
factors the court considered when it made its decision.
The court credited the evidence that the respondents
cannot legally stay with the children at the home of the
father’s mother. It concluded that, ‘‘[a]s a result, the
mother and the father are still without suitable housing
for the children . . . [and] this problem might have
been solved if the mother had not been discharged due
to noncompliance last year from the supportive housing
assistance program to which she had been referred by
[the department].’’ Neither respondent challenges the
court’s factual findings. See footnote 10 of this opinion.
Although the respondents were living with the father’s
mother, there was evidence, which the court credited,
to support its conclusion that such housing was neither
suitable nor permissible.
The court’s memorandum of decision plainly indi-
cates that the court considered the respondents’ refusal
to submit to substance abuse testing, concerns over
domestic violence, and the lack of suitable housing
when it concluded that the respondents have failed to
achieve a sufficient degree of personal rehabilitation
since the department began providing reunification ser-
vices to the respondents, beginning in October, 2014.
The record before us contains evidence that substanti-
ates these findings. Accordingly, we conclude that the
court reasonably could have determined, on the basis
of its factual findings and the reasonable inferences
drawn therefrom, that the respondents failed to achieve
sufficient rehabilitation that would encourage the belief
that, within a reasonable time, they could assume a
responsible positon in the children’s lives.
II
The respondents next claim that the court improperly
determined that the termination of their parental rights
was in the best interests of the children. Specifically,
they argue that the court’s conclusion was improper
because the court found, among other things, that they
have made progress in their rehabilitation and that they
have a strong bond with the children.15 We disagree.
We begin by setting forth the applicable standard
of review and general principles. ‘‘In the dispositional
phase of a termination of parental rights hearing,16 the
emphasis appropriately shifts from the conduct of the
parent to the best interest of the child. . . . It is well
settled that we will overturn the trial court’s decision
that the termination of parental rights is in the best
interest of the [child] only if the court’s findings are
clearly erroneous. . . . The best interests of the child
include the child’s interests in sustained growth, devel-
opment, well-being, and continuity and stability of [his
or her] environment. . . . In the dispositional phase of
a termination of parental rights hearing, the trial court
must determine whether it is established by clear and
convincing evidence that the continuation of the
respondent’s parental rights is not in the best interest
of the child. In arriving at this decision, the court is
mandated to consider and make written findings regard-
ing seven factors delineated in [§ 17a-112 (k)].17 . . .
The seven factors serve simply as guidelines for the
court and are not statutory prerequisites that need to
be proven before termination can be ordered. . . .
There is no requirement that each factor be proven by
clear and convincing evidence.’’ (Footnotes added and
altered; internal quotation marks omitted.) In re Joseph
M., 158 Conn. App. 849, 868–69, 120 A.3d 1271 (2015).
In the portion of its memorandum of decision where
it addressed the dispositional phase, the court reasoned:
‘‘The court has given careful consideration to the strong
feelings which the [respondents] and the children have
for each other. However, the court must examine and
weigh this evidence in conjunction with the evidence
about the length of time that both children have been
in foster care and each parent’s lack of progress toward
reunification. Anaishaly, who will turn seven in June,
[2018], has spent a total of more than three and [one-
half] years in the custody of [the commissioner]. Khria-
nalis, who will be three in August, [2018], has resided
for almost [twenty-three] months—or slightly less than
two thirds of her life—in a foster home. Based on each
parent’s inability to sufficiently recognize and remedy
the issues that caused the children’s removal, and their
failure to substantially benefit from services and treat-
ment, it is impossible to predict when in the future [the
children] could be safely returned home. The evidence
also established that [the children] are both doing well
in their present placement, and that their caretakers
have committed to adopting them.’’ The court con-
cluded: ‘‘Because of the strong bond that exists between
the [respondents] and [the children], it is very appro-
priate that [the mother] and [the father] were afforded
much help and many opportunities to achieve reunifica-
tion. However, despite receiving many supportive ser-
vices during the lengthy pendency of this matter, the
respondents have not resolved the serious and chronic
problems that resulted in the children’s commitment
to [the commissioner’s custody]. [The children] require
the security of a safe and stable, permanent home. Their
current placement provides this to them. Their biologi-
cal parents remain unable to offer this to them. The
court finds that it would be detrimental to the well-being
of these children [to] delay permanency any longer in
order to afford the respondents additional time to pur-
sue rehabilitative efforts which have thus far proven
unsuccessful.’’ The court also made additional findings
as to the seven factors enumerated in § 17a-112 (k) and
those findings are supported by the record.
Although the respondents contend that certain posi-
tive facts found by the court outweigh the negatives,
‘‘we will not scrutinize the record to look for reasons
supporting a different conclusion than that reached by
the trial court.’’ In re Shane M., supra, 318 Conn. 593.
The respondents point out that the court found that
they had made some progress in their rehabilitation
efforts. We will not, however, overlook the court’s find-
ing that despite ‘‘successfully complet[ing] some pro-
grams,’’ the respondents were ‘‘unsuccessful, or
noncompliant, with others’’ since the department
removed Khrianalis and Anaishaly, for the second time,
from their care on June 29, 2016.
Moreover, as to the respondents’ contention that the
court found that they shared a bond with their children,
‘‘ ‘[o]ur courts consistently have held that even when
there is a finding of a bond between [a] parent and a
child, it still may be in the child’s best interest to termi-
nate parental rights.’ In re Rachel J., 97 Conn. App. 748,
761, 905 A.2d 1271, cert. denied, 280 Conn. 941, 912
A.2d 476 (2006); see also In re Tyqwane V., 85 Conn.
App. 528, 536, 857 A.2d 963 (2004) (‘The Appellate Court
has concluded that a termination of parental rights is
appropriate in circumstances where the children are
bonded with their parent if it is in the best interest of
the child to do so. . . . This is such a case.’ . . .); In
re Ashley S., 61 Conn. App. 658, 667, 769 A.2d 718 (‘[A]
parent’s love and biological connection . . . is simply
not enough. [The department] has demonstrated by
clear and convincing evidence that [the respondent]
cannot be a competent parent to these children because
she cannot provide them a nurturing, safe and struc-
tured environment.’), cert. denied, 255 Conn. 950, 769
A.2d 61 (2001).’’ In re Melody L., 290 Conn. 131, 164,
962 A.2d 81 (2009), overruled in part on other grounds
by State v. Elson, 311 Conn. 726, 91 A.3d 862 (2014).
The existence of a bond, while relevant to the court’s
analysis, is not dispositive of the best interests determi-
nation.
On our careful review of all the evidence, we cannot
conclude that the trial court’s determination that the
termination of the respondents’ parental rights was in
the best interests of the children was clearly erroneous.
The judgments are 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.
** June 10, 2019, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
We refer to the mother and the father collectively as the respondents.
2
The mother gave birth to two other children. See footnote 6 of this
opinion. We refer to all four children individually by their names, and we
refer to Anaishaly and Khrianalis collectively as the children.
3
We note that pursuant to Practice Book § 67-13, the attorney for the
minor children filed a statement adopting the brief of the commissioner in
the mother’s appeal.
4
According to a department social worker affidavit, pursuant to the safety
plan, the mother agreed to go to the domestic violence shelter, follow the
shelter’s rules, and follow its recommendations, including those related to
advocacy and domestic violence education. The mother also agreed to have
no contact with the father and to file a restraining order against him. She
further agreed to request advocacy regarding her lease. The department
agreed to maintain communication with the mother and shelter staff. It also
agreed to continue its assessment and to provide case management services.
5
The file indicates that the respondents were issued specific steps filed
on October 30, 2014, and signed by the respondents on November 5, 2014,
which provided, inter alia, that they: participate in counseling and make
progress toward the identified treatment goals; not use illegal drugs or abuse
alcohol or medicine; submit to random drug testing; cooperate with service
providers’ recommendations for parenting/individual/family counseling, in-
home support services, and/or substance abuse assessment/treatment; get
and/or maintain adequate housing and a legal income; and learn about the
impact of domestic violence on children.
6
The respondents’ parental rights as to Knitzeyalis are not the subject of
this action. The mother also has an older child, Taisha R.G., who was born
on December 19, 2007. According to a department social study, from ‘‘March
19, 2008, to August, 2009, [the mother] had protective services involvement
in Massachusetts due to domestic violence and homelessness/transience.’’
Guardianship of Taisha was transferred from the mother to the child’s
paternal grandmother in May, 2008. Since that time, Taisha has remained
in her paternal grandmother’s care.
7
In its memorandum of decision, the court took judicial notice of the fact
that ‘‘the court issuing that order of temporary custody made a legal finding
that Knitzeyalis was in immediate danger of physical injury from [the] sur-
roundings in the parental home at the time the order was signed.’’
8
In addition to the IPV-FAIR program, the mother also successfully com-
pleted an ‘‘Intimate Partner Violence Group’’ on September 17, 2016, and a
‘‘Positive Parenting & Support Group’’ on May 20, 2017. (Internal quotation
marks omitted.) The mother also completed similar domestic violence pro-
grams known as ‘‘Integrated Family Violence Services’’ on dates not specified
and ‘‘Positive Parenting Education and Support Groups’’ on July 28, 2015,
and September 17, 2016. (Internal quotation marks omitted.)
9
A clinician at the agency where the testing was conducted testified that
the mother’s use of marijuana would likely not have shown on the hair test
because of how recently the hair sample was collected relative to the time
frame of the mother’s reported use of the drug.
10
We note that the father does not argue that the court’s findings are
clearly erroneous and, in the mother’s appellate brief, she explicitly states
that she ‘‘does not by the present appeal challenge the trial court’s factual
findings.’’ Instead, both respondents argue that those findings are insufficient
to support the court’s ultimate conclusion.
11
General Statutes § 17a-112 (j) provides in relevant part: ‘‘The Superior
Court, upon notice and hearing as provided in sections 45a-716 and 45a-
717, may grant a petition filed pursuant to this section if it finds by clear
and convincing evidence that (1) the Department of Children and Families
has made reasonable efforts to locate the parent and to reunify the child
with the parent . . . (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, or (ii) is found to be neglected, abused or uncared for and has
been in the custody of the commissioner for at least fifteen months and the
parent of such child has been provided specific steps to take to facilitate
the return of the child to the parent pursuant to section 46b-129 and has
failed to achieve such degree of personal rehabilitation as would encourage
the belief that within a reasonable time, considering the age and needs of
the child, such parent could assume a responsible position in the life of the
child . . . .’’
12
We note that the respondents do not argue on appeal that the department
did not make reasonable and timely efforts to assist in their rehabilitation
and reunification with the children.
13
In her appellate brief, the mother specifically refers to the permitted
palliative use of marijuana; see General Statutes § 21a-408a et seq.; and the
decriminalization of possession of less than one-half ounce of marijuana.
See General Statutes § 21a-279a.
14
The mother argues that the court cited to a department social study
written before she completed the IPV-FAIR program in November, 2017,
to support the following findings: ‘‘The court finds that the mother lacks
understanding about the dynamic of intimate partner violence that exists
in her relationship with the father, and how it is harmful to her children.
The court finds that there is a substantial likelihood that [the children]
would be exposed to acts of domestic violence, or other angry outbursts
by [the father] if they were returned to parental custody. The court also
finds that [the mother] has not demonstrated that she would be able to
shield [the children] from the potential physical and psychological dangers
associated with the father’s reactive behavior.’’ The mother, however, has
not distinctly raised a claim that the court’s factual findings were clearly
erroneous. To the contrary, she specifically states in her appellate brief
that she ‘‘does not by the present appeal challenge the trial court’s factual
findings.’’ Moreover, on the evidence before us, we do not conclude that
the court’s factual findings were clearly erroneous. ‘‘In reviewing the trial
court’s decision, [b]ecause it is the trial court’s function to weigh the evi-
dence . . . we give great deference to its findings.’’ (Internal quotation
marks omitted.) In re Shane M., supra, 318 Conn. 593 n.20.
We further note that the mother completed the IPV-FAIR program to
which she refers in November, 2017, subsequent to the May, 2017 filing of
the termination of parental rights petitions. Practice Book § 35a-7 (a) pro-
vides: ‘‘In the adjudicatory phase, the judicial authority is limited to evidence
of events preceding the filing of the petition or the latest amendment, except
where the judicial authority must consider subsequent events as part of its
determination as to the existence of a ground for termination of parental
rights.’’ This court ‘‘has expanded that rule to allow courts to consider events
subsequent to the filing date of the petitions in the adjudicatory phase of
termination proceedings. Practice Book § 33-3 (a) [now § 35a-7] limits the
time period reviewable by the court in the adjudicatory phase to the events
preceding the filing of the petition or the latest amendment. . . . In the
adjudicatory phase, the court may rely on events occurring after the date
of the filing of the petition to terminate parental rights when considering
the issue of whether the degree of rehabilitation is sufficient to foresee that
the parent may resume a useful role in the child’s life within a reasonable
time.’’ (Emphasis in original; internal quotation marks omitted.) In re Jenni-
fer W., 75 Conn. App. 485, 494–95, 816 A.2d 697, cert. denied, 263 Conn.
917, 821 A.2d 770 (2003).
15
The mother also asserts ‘‘that there was absolutely no evidence adduced
suggesting that ongoing visits with the [respondents] while the children
remained in the sole relative foster placement [that they have] known since
removal was having any negative effect on them. . . . Indeed, there was
no evidence suggesting that the continuation of the [respondents’] legal
rights would affect the children’s well-being in any way.’’ (Citation omitted.)
This assertion, however, ignores established case law and the fundamental
underlying public policy that recognizes the importance of permanency in
a child’s life. Anaishaly was removed from the respondents’ care when she
was three years old. Khrianalis was almost ten months old when she was
removed from the respondents’ care. The children have been in legal limbo
since then. At the time the termination of parental rights petitions were
filed, Anaishaly was almost six years old and Khrianalis was almost two
years old. When the court rendered its decision, Anaishaly was almost seven
years old and Khrianalis was almost three years old.
Our appellate courts have ‘‘noted consistently the importance of perma-
nency in children’s lives. In re Juvenile Appeal (Anonymous), 181 Conn.
638, 646, 436 A.2d 290 (1980) (removing child from foster home or further
delaying permanency would be inconsistent with his best interest); In re
Victoria B., 79 Conn. App. 245, 263, 829 A.2d 855 (2003) (trial court’s findings
were not clearly erroneous where much of child’s short life had been spent
in custody of [commissioner] and child needed stability and permanency
in her life); In re Teshea D., [9 Conn. App. 490, 493–94, 519 A.2d 1232 (1987)]
(child’s need for permanency in her life lends added support to the court’s
finding that her best interest warranted termination of the respondent’s
parental rights). Virtually all experts, from many different professional disci-
plines, agree that children need and benefit from continuous, stable home
environments.’’ (Internal quotation marks omitted.) In re Davonta V., 285
Conn. 483, 494, 940 A.2d 733 (2008). ‘‘Termination of a biological parent’s
rights, by preventing further litigation with that parent, can preserve the
stability a child has acquired in a successful foster placement and, further-
more, move the child closer toward securing permanence by removing
barriers to adoption. . . . Even if no adoption is forthcoming, termination
can aid stability and lessen disruption because a parent whose rights have
been terminated no longer may file a motion to revoke the commitment of
the child to the custody of the [commissioner] . . . or oppose an annual
permanency plan.’’ (Citation omitted; internal quotation marks omitted.) In
re Nevaeh W., 317 Conn. 723, 733, 120 A.3d 1177 (2015).
Evidence before the court supported its findings that the children require
permanency, and the court properly considered their need for permanency
in its consideration of whether termination was in their best interests.
Accordingly, we reject the mother’s assertion.
16
‘‘Proceedings to terminate parental rights are governed by § 17a-112.
. . . Under § 17a-112, a hearing on a petition to terminate parental rights
consists of two phases: the adjudicatory phase and the dispositional phase.
During the adjudicatory phase, the trial court must determine whether one
or more of the . . . grounds for termination of parental rights set forth in
§ 17a-112 [(j) (3)] exists by clear and convincing evidence. . . . If the trial
court determines that a statutory ground for termination exists, then it
proceeds to the dispositional phase. During the dispositional phase, the trial
court must determine whether termination is in the best interests of the
child. . . . The best interest determination also must be supported by clear
and convincing evidence.’’ (Citation omitted; internal quotation marks omit-
ted.) In re Shane M., supra, 318 Conn. 582–83 n.12.
17
General Statutes § 17a-112 (k) provides: ‘‘Except in the case where
termination of parental rights is based on consent, in determining whether
to terminate parental rights under this section, the court shall consider and
shall make written findings regarding: (1) The timeliness, nature and extent
of services offered, provided and made available to the parent and the child
by an agency to facilitate the reunion of the child with the parent; (2)
whether the Department of Children and Families has made reasonable
efforts to reunite the family pursuant to the federal Adoption and Safe
Families Act of 1997, as amended from time to time; (3) the terms of any
applicable court order entered into and agreed upon by any individual or
agency and the parent, and the extent to which all parties have fulfilled
their obligations under such order; (4) the feelings and emotional ties of
the child with respect to the child’s parents, any guardian of such child’s
person and any person who has exercised physical care, custody or control
of the child for at least one year and with whom the child has developed
significant emotional ties; (5) the age of the child; (6) the efforts the parent
has made to adjust such parent’s circumstances, conduct, or conditions to
make it in the best interest of the child to return such child home in the
foreseeable future, including, but not limited to, (A) the extent to which
the parent has maintained contact with the child as part of an effort to
reunite the child with the parent, provided the court may give weight to
incidental visitations, communications or contributions, and (B) the mainte-
nance of regular contact or communication with the guardian or other
custodian of the child; and (7) the extent to which a parent has been
prevented from maintaining a meaningful relationship with the child by
the unreasonable act or conduct of the other parent of the child, or the
unreasonable act of any other person or by the economic circumstances of
the parent.’’