In re Lilyana P. , 169 Conn. App. 708 ( 2016 )

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IN RE LILYANA P.*
(AC 39348)
Lavine, Alvord and Schaller, Js.
Argued November 14—officially released December 9, 2016**
(Appeal from Superior Court, judicial district of
Middlesex, Child Protection Session at Middletown,
Olear, J.)
David J. Reich, for the appellant (respondent
mother).
Daniel M. Salton, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, and Benjamin Zivyon, assistant attorney general,
for the appellee (petitioner).
Opinion
ALVORD, J. The respondent mother, Laura F.,
appeals from the judgment of the trial court, rendered
in favor of the petitioner, the Commissioner of Children
and Families, terminating her parental rights with
respect to her daughter, Lilyana P.1 On appeal, the
respondent claims that the court (1) improperly deter-
mined, in accordance with General Statutes § 17a-112
(j) (3) (B) (i), that the petitioner had proven by clear
and convincing evidence that Lilyana previously was
adjudicated neglected and that the respondent had
failed to achieve a sufficient degree of personal rehabili-
tation to encourage a belief that she could assume a
responsible position in Lilyana’s life within a reasonable
period of time, and (2) violated her substantive due
process rights ‘‘because [she] was recovering from a
disabling medical condition that had prevented her from
rehabilitating as a parent.’’ We affirm the judgment of
the trial court.
The record reveals the following relevant facts, which
are uncontested or were found by the trial court, and
procedural history. The respondent, as a child, suffered
from neglect, as well as physical and sexual abuse.
Because of the abuse, the respondent was mentally
unstable, which led to her three month hospitalization
in the fall of 1995. At that time, when the respondent
was nine years old, she was diagnosed with impulsive
control disorder, mood disorder, obsessive compulsive
traits, and attention deficit hyperactivity disorder.
The respondent graduated from high school, but her
only reported employment occurred in 2008. She has
never been married. In 2005, her first child was born,
who is in the care of his paternal aunt and the aunt’s
mother as co-guardians. In 2008, her second child was
born, and a transfer of guardianship to that child’s
maternal aunt and uncle was granted in 2010. The chil-
dren have different biological fathers.
The respondent has a significant history of substance
abuse. While she was together with the father of her
second child, she and the father used cocaine. They
spent between $40,000 and $50,000 on cocaine and alco-
hol, which depleted her grandmother’s savings account
and his trust fund. The respondent stopped using
cocaine when she became pregnant with her second
child in 2007.
In April, 2009, the respondent suffered multiple injur-
ies in a serious automobile accident. While hospitalized,
she was exposed to and became a carrier of Methicillin-
resistant Staphylococcus Aureus (MRSA). She weighed
more than 225 pounds when she was released from the
hospital, and has had mobility issues as a result of her
injuries and the loss of her calf muscle due to MRSA.
Additionally, the respondent is prone to kidney infec-
tions, herniated discs, and migraine headaches.
In November, 2012, the respondent met Bryan P., the
father of her third child, Lilyana. She became pregnant
shortly after they met, and Lilyana was born in August,
2013. At the time of her birth, Lilyana had benzodiaze-
pines and opiates in her system and was experiencing
withdrawal symptoms. When the respondent indicated
that she was going to remove Lilyana from the hospital
against medical advice, a call was placed to the Depart-
ment of Children and Families (department). Lilyana
was released to her parents’ care, however, after they
agreed to cooperate with the department.
In April, 2014, the petitioner filed for an order of
temporary custody because of ongoing concerns about
the parents’ substance abuse, their refusal to allow the
department access to Lilyana, and their revocation of
the releases they previously had signed allowing the
department to communicate with service providers for
them and Lilyana. Among the department’s concerns,
the respondent had visited various emergency rooms,
which were not affiliated with her health care providers,
seeking opiates. She also has a history of abusing pre-
scription medications. On the scheduled date of the
hearing on the petitioner’s application, the parties
reached an agreement, and Lilyana was returned to her
parents. Specific steps were approved by the court on
April 30, 2014, which included orders that the respon-
dent was to have supervised contact only with Lilyana,
and the parents were to enroll Lilyana in a child care
facility at the department’s expense.
In July, 2014, the respondent participated in a court-
ordered psychological evaluation by Edward Rabe,
M.D., Ph.D., who is an expert in child and adolescent
psychiatry. Having missed her first scheduled appoint-
ment with Dr. Rabe, the respondent arrived an hour
late for the second appointment. Her diagnosis at that
time was mood disorder, post-traumatic stress disorder,
and opiate abuse in remission. Dr. Rabe noted the
respondent’s history of substance abuse, including use
of cocaine, and her intermittent use of opiates that
had been prescribed during emergency room visits. He
found her mental status evaluation to be ‘‘unremark-
able, with the exception of her relative lack of insight
and judgment related to her minimization of the signifi-
cance of obtaining pain medications from prescribers
who are not members of her treatment team, and her
failure to recognize the consequences of withholding
[department] access to her provider records.’’ Dr. Rabe
opined that the respondent’s ‘‘problem list consists of
psychiatric issues, substance abuse issues, and medi-
cal issues.’’
In his concluding remarks in the psychiatric evalua-
tion, Dr. Rabe stated that the respondent currently was
refraining from seeking and using supplementary opi-
ates prescribed by clinicians who were not members
of her treatment team, but that a risk of relapse was
likely in the absence of monitoring, due to her limited
judgment and insight. Accordingly, Dr. Rabe made the
following recommendation: ‘‘Improved pain manage-
ment could help [the respondent] reduce her episodic
drug seeking and use. Re-referral to a pain clinic that
specializes in management of pain syndromes in medi-
cally complex patients would be helpful in developing
a treatment plan that renders this behavior unneces-
sary. Her [primary care physician], mental health pre-
scriber, and pain management team should be in
communication to develop a comprehensive under-
standing of her needs. A written treatment contract
shared by all caregivers and signed by [the respondent]
would be critical to developing a successful treat-
ment plan.’’
The department provided the respondent with infor-
mation for her to self-refer to Bristol Hospital and the
University of Connecticut for their pain management
programs.2 She failed to engage with either program.
Further, during an unannounced visit, the department
found the respondent alone with Lilyana despite the
court order that her contact be supervised. Additionally,
the parents failed to enroll Lilyana in a child care facil-
ity. In November, 2014, Lilyana was removed pursuant
to a subsequent order of temporary custody and placed
in foster care, where she has remained. Following Lily-
ana’s removal, the respondent was hospitalized follow-
ing a suicide attempt.
In February, 2015, the respondent’s left leg was ampu-
tated, and, thereafter, she was discharged to Silver
Springs Care Center (Silver Springs) for rehabilitation.
She remained at Silver Springs for approximately six
months and then moved into a handicapped accessible
apartment that the Department of Mental Health and
Addiction Services helped her to obtain. She continues
to reside in that apartment, receiving in-home assis-
tance with everyday living, and she supports herself
with social security benefits that she collects due to
her mental health and medical issues. Additionally, she
receives cash assistance from the Department of Social
Services in connection with its Supplemental Nutrition
Assistance Program.
On May 29, 2015, the petitioner filed a petition to
terminate the parental rights of Bryan P. and the respon-
dent with respect to Lilyana. The termination of paren-
tal rights trial was held on April 6 and 11, 2016. Although
the trial was scheduled to resume on April 12, 2016,
the respondent, on that date, brought a backpack with
drug paraphernalia into the courthouse. The state police
were called, and she was issued an infraction for posses-
sion of drug paraphernalia. The trial then was continued
to April 20, 2016, at which time it concluded. The
respondent was represented by counsel during the trial,
and she testified at trial. Several witnesses testified at
trial, including Dr. Rabe, and multiple exhibits were
admitted into evidence in this fully contested case.
The court issued its memorandum of decision on May
16, 2016, in which it made the following determinations:
(1) the respondent’s testimony at trial that she had
no knowledge that the drug paraphernalia was in the
backpack when she entered the courthouse on April
12, 2016, was not credible; (2) the respondent has ‘‘a
significant history of substance abuse’’; (3) prior to her
pregnancy in 2007, the respondent and the father of her
second child used cocaine and spent between $40,000
and $50,000 on cocaine and alcohol; (4) the respondent
is prone to kidney infections and herniated discs; (5) Dr.
Rabe opined that the respondent suffered from medical
conditions that need to be treated in conjunction with
her psychiatric problems and that enhanced pain and
dietary management could reduce her need to seek
narcotics to manage her distress; (6) Dr. Rabe recom-
mended that the respondent be re-referred to a pain
clinic and credibly testified that the respondent likely
would not improve unless she received such pain man-
agement treatment; (7) the respondent’s ‘‘attendance
and compliance with service providers is spotty’’; (8)
the respondent was ‘‘resistant to and did not see the
need for therapy, and she attended appointments, at
least until recently, only at the insistence of her primary
care physician’’; (9) the respondent’s ‘‘need for mental
health treatment is also evidenced by her suicide
attempts’’; (10) although the respondent was provided
with information to self-refer to the University of Con-
necticut pain clinic, she made one telephone call, was
told there was a waiting list, did not put her name on
the waiting list, and never again contacted the pain
clinic to enroll; (11) the respondent ‘‘has a history of
abusing prescription medications’’; (12) Lilyana was
adjudicated neglected on April 30, 2014; (13) Lilyana
has remained committed to the care of the petitioner
since February 5, 2015; (14) as of the time of trial,
Lilyana was almost thirty-three months old and, consid-
ering both removals on the orders for temporary cus-
tody, had been in the care of the petitioner for more
than seventeen months; (15) the respondent has limited
insight and judgment as to the potential gains she could
make if she engaged in adequate treatment for her men-
tal health issues and physical maladies; (16) the respon-
dent has not attended a pain clinic and, therefore, ‘‘has
not taken the step to address the interaction between
her medical problems and her psychiatric and psycho-
logical problems’’; (17) ‘‘[t]he failure to acknowledge
the underlying personal issues that form the basis for
the department’s concerns indicates a failure to achieve
a sufficient degree of personal rehabilitation’’ [internal
quotation marks omitted]; (18) the petitioner proved
by clear and convincing evidence that the respondent
has failed to achieve such a degree of rehabilitation so
as to encourage the belief that she could resume a role
as a parent for Lilyana within a reasonable period of
time; and (19) giving the respondent ‘‘a reasonable
period of additional time would certainly not bring her
performance as a parent to an acceptable level.’’ The
court also determined that termination of the respon-
dent’s parental rights as to Lilyana was in the best
interest of the child. See General Statutes § 17a-112
(k). Accordingly, the court terminated the respondent’s
parental rights and appointed the petitioner the statu-
tory parent for Lilyana. This appeal followed.3
I
The respondent claims that the court improperly con-
cluded that termination of her parental rights was war-
ranted in accordance with § 17a-112 (j) (3) (B) (i)
because Lilyana previously had been adjudicated
neglected and, in light of her age and needs, the respon-
dent had failed to achieve a sufficient degree of personal
rehabilitation necessary to encourage a belief that she
could assume a responsible position in Lilyana’s life
within a reasonable period of time. The respondent
argues that ‘‘[t]he trial court stressed the fact that [the
respondent] did not engage in a pain clinic. The court
does not acknowledge that [the respondent’s] pain is
now significantly reduced so that she no longer needs
to attend a pain clinic and that she is cooperating with
services and improving.’’ According to the respondent,
the amputation of the respondent’s leg in February,
2015, ‘‘greatly ameliorated’’ her pain and the court’s
determination ‘‘is based on obsolete information.’’
We disagree.4
‘‘We begin by setting forth applicable legal principles,
including our standard of review. A hearing on a termi-
nation of parental rights petition consists of two phases,
adjudication and disposition. . . . In the adjudicatory
phase, the court must determine whether the [peti-
tioner] has proven, by clear and convincing evidence,
a proper ground for termination of parental rights. . . .
In the dispositional phase, once a ground for termina-
tion has been proven, the court must determine whether
termination is in the best interest of the child. . . .
‘‘Failure of a parent to achieve sufficient personal
rehabilitation is one of six statutory grounds on which
a court may terminate parental rights pursuant to § 17a-
112. [See General Statutes § 17a-112 (j) (3) (B) (i).] That
ground exists when a parent of a child whom the court
has found to be neglected fails to achieve such a degree
of rehabilitation as would encourage the belief that
within a reasonable time, considering the age and needs
of the child, the parent could assume a responsible
position in the life of that child. . . .
‘‘Personal rehabilitation as used in [§ 17a-112 (j) (3)
(B) (i)] refers to the restoration of a parent to his or
her former constructive and useful role as a parent.
. . . The statute does not require [a parent] to prove
precisely when [she] will be able to assume a responsi-
ble position in [her] child’s life. Nor does it require
[her] to prove that [she] will be able to assume full
responsibility for [her] child, unaided by available sup-
port systems. . . . Rather, [§ 17a-112] 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. . . . [The statute] requires the court
to find, by clear and convincing evidence, that the level
of rehabilitation [the parent] has achieved, if any, falls
short of that which would reasonably encourage a belief
that at some future date [he or she] can assume a
responsible position in [his or her] child’s life. . . . [I]n
assessing rehabilitation, the critical issue is not whether
the parent has improved [his or her] ability to manage
[his or her] own life, but rather whether [he or she] has
gained the ability to care for the particular needs of the
child at issue. . . .
‘‘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 find-
ings 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 reason-
able inferences drawn therefrom, that the cumulative
effect of the evidence was sufficient to justify its [ulti-
mate conclusion]. . . . When applying this standard,
we construe the evidence in a manner most favorable
to sustaining the judgment of the trial court. . . . We
will not disturb the court’s subordinate factual findings
unless they are clearly erroneous.’’ (Citations omitted;
footnote omitted; internal quotation marks omitted.)
In re Leilah W., 166 Conn. App. 48, 66–68, 141 A.3d
1000 (2016).
The gravamen of the respondent’s claim is that the
trial court improperly based its determination that she
failed to rehabilitate on the fact that she failed to enroll
in a pain clinic, as recommended in Dr. Rabe’s 2014
report, when the amputation of her leg in 2015 so
decreased her pain as to make compliance with that
recommendation unnecessary. She claims that the basis
for the court’s conclusion that she failed to address her
issues was obsolete information.
We first note that the respondent testified at trial that
her level of pain had ‘‘gotten a lot better,’’ and that she
was ‘‘not in as much pain as [she] used to be.’’ She did
not testify that she no longer experienced pain or that
she no longer required pain medication. In fact, she
testified that her primary care physician continued to
prescribe pain medication for pain management. More-
over, as previously discussed, the respondent’s medical
issues also include kidney infections, herniated discs,
and migraine headaches. To imply that there is no risk
for her to abuse drugs, either prescription or illicit, is
to ignore the other findings of the court that she has a
history of substance abuse that predates her automobile
accident, as well as significant mental health issues that
need to be addressed.
The court, while mentioning the respondent’s failure
to attend the pain clinic as recommended by Dr. Rabe,
also stated that Dr. Rabe testified at trial that the respon-
dent was unlikely to improve unless she received such
treatment. The court noted her limited insight and judg-
ment as to the potential gains she could make with
such treatment, and cited In re Shane M., 318 Conn.
569, 589,122 A.3d 1247 (2015), for the principle that the
‘‘failure to acknowledge the underlying personal issues
that form the basis for the department’s concerns indi-
cates a failure to achieve a sufficient degree of personal
rehabilitation.’’ (Internal quotation marks omitted.) The
trial court’s conclusion was bolstered by the respon-
dent’s recent behavior in bringing drug paraphernalia
into the courthouse on a scheduled day for trial.
On the basis of our review of the record, and constru-
ing the evidence in a manner most favorable to sus-
taining the judgment of the trial court, we conclude
that the court properly determined that the petitioner
proved by clear and convincing evidence that the
respondent had failed to achieve a sufficient degree of
personal rehabilitation necessary to encourage a belief
that she could assume a responsible position in Lily-
ana’s life within a reasonable period of time. Accord-
ingly, the court did not err in terminating the respon-
dent’s parental rights.
II
The respondent’s next claim is that the court violated
her substantive due process rights ‘‘because [she] was
recovering from a disabling medical condition5 that had
prevented her from rehabilitating as a parent.’’ As
acknowledged by the respondent’s counsel during oral
argument before this court, this is an ‘‘alternative’’ claim
based on the same alleged facts as articulated in her
first claim. Our review of the second claim reveals that
it is simply repetitive of the respondent’s first claim,
with the added argument that it ‘‘should shock the con-
science that the trial court would not give [the respon-
dent] additional time to further progress so that she
could care for her daughter.’’
The respondent cites no case law and provides no
substantive detail to support her claim of a substantive
due process violation under these circumstances. Fur-
ther, as we concluded in part I of this opinion, the
court’s determination that she failed to rehabilitate was
in accord with applicable case law and legal principles
and, accordingly, did not ‘‘shock the conscience.’’ More-
over, in its memorandum of decision, the court
expressly stated that giving the respondent ‘‘a reason-
able period of additional time would certainly not bring
her performance as a parent to an acceptable level.’’
The respondent’s second claim fails.
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.
** December 9, 2016, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
In the same proceeding, the court also terminated the parental rights of
Lilyana’s father, Bryan P. He did not timely appeal from that judgment. We
therefore refer to Laura F. as the respondent throughout this opinion.
2
At the termination of parental rights trial, the social worker testified
that the department wanted the respondent to self-refer to show her willing-
ness to participate in the program.
3
We note that the attorney for the minor child filed a statement pursuant
to Practice Book § 67-13 indicating that he adopts the brief submitted by
the petitioner.
4
We note that the respondent has failed to cite any portion of the tran-
scripts to support the general conclusions as to the level of her pain, her
compliance with programs, or her addressing her physical and mental health
needs. On that basis alone, this court could decline to review her claim.
See In re Sena W., 147 Conn. App. 435, 441–42 n.5, 82 A.3d 684 (2013).
5
We note that the respondent does not mention the Americans with
Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq., in her argument.
To the extent that she is claiming that the ADA applied to the termination
of parental rights proceeding, this court previously has rejected such a claim.
‘‘[T]he ADA neither provides a defense to nor creates special obligations in
a termination proceeding.’’ In re Antony B., 54 Conn. App. 463, 472, 735
A.2d 893 (1999).