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IN RE KYARA H. ET AL.*
(AC 35506)
Beach, Keller and Pellegrino, Js.
Argued October 21, 2013—officially released January 16, 2014**
(Appeal from Superior Court, judicial district of
Windham, Juvenile Matters at Willimantic, Hon. Francis
J. Foley III, judge trial referee.)
David J. Reich, assigned counsel, for the appellant
(respondent father).
Benjamin Zivyon, assistant attorney general, with
whom were Susan T. Pearlman, assistant attorney gen-
eral, and, on the brief, George Jepsen, attorney general,
and Michael J. Besso, assistant attorney general, for
the appellee (petitioner).
Raymond F. Parlato, for the minor children.
Opinion
KELLER, J. The respondent father, Tyrone H.,
appeals from the judgments of the trial court, Hon.
Francis J. Foley III, judge trial referee, terminating his
parental rights with respect to his minor son, Jahein
H., and minor daughter, Kyara H., pursuant to General
Statutes § 17a-112 (j) (3) (B) (i), for failure to achieve
such a degree of personal rehabilitation as would
encourage the belief that, within a reasonable time, he
could assume a responsible position in the lives of his
children.1 On appeal, the respondent claims that the
trial court’s statutorily required finding that the Depart-
ment of Children and Families (department) made rea-
sonable efforts to reunify him with his two children
was clearly erroneous because the department failed
to continue to make such efforts until the date the court
terminated parental rights. We affirm the judgments of
the trial court.
The following facts, as found by the trial court by
clear and convincing evidence, and procedural history
are relevant to the disposition of this appeal. Andrea
K., the mother of Kyara and Jahein, met the respondent
when she was nineteen years old and soon became
pregnant. Kyara was born on January 22, 2004. Tests
for the presence of substances in her system were posi-
tive for the presence of marijuana, which Andrea admit-
ted she used throughout her pregnancy. Andrea
transferred guardianship of Kyara to the child’s mater-
nal grandfather, Leander K., in whose custody Kyara
remained for the first three years of her life.
Andrea gave birth to Jahein, her second child by the
respondent, in that same year, on November 13, 2004.
Tests revealed that Jahein also was exposed to mari-
juana during pregnancy. Two months after Jahein’s
birth, the respondent was arrested for an assault upon
Andrea. Andrea stated that the respondent left her
shortly after this incident and thereafter, did not
acknowledge his children in any way. The respondent
was later convicted of the assault and sentenced to one
year in jail, execution suspended, with three years of
probation. He later violated his probation and was incar-
cerated.
From May 6, 2005, until the spring of 2006, neither
Kyara nor Jahein lived with Andrea. Kyara was residing
with Leander and Jahein was in foster care, having been
removed from Andrea’s care by the department after
Andrea, while extremely intoxicated and holding Jah-
ein, lost her balance and fell, causing Jahein to hit his
head. Andrea was arrested but participated in services
and treatment programs, enabling Jahein to be returned
to her care by the end of 2005.
In the summer of 2008, Andrea met another man,
Jose M., and began a four year relationship marred by
substance abuse and incidents of domestic violence.
This relationship produced three more children.
On March 26, 2009, when Andrea was pregnant with
the first of her three children by Jose, the petitioner,
the Commissioner of Children and Families (commis-
sioner), sought and obtained temporary custody of
Kyara and Jahein due to their exposure to illegal sub-
stances, domestic violence and inadequate supervision
in Andrea’s home. Andrea and Jose participated in ser-
vices resulting in the return of Kyara and Jahein in
October, 2009, under an order of protective super-
vision.2
In November, 2009, during the period of court-
ordered protective supervision for Kyara and Jahein,
Andrea was arrested for disorderly conduct and fined
$200. This was her third arrest. The following month,
Andrea’s third child, Trevon, was born, with indications
of exposure to marijuana in utero. On April 11, 2001,
Andrea’s fourth child, Kahlil, was born, also testing
positive for exposure to marijuana during the preg-
nancy.3 Andrea acknowledged to the department that
she used marijuana and alcohol throughout this preg-
nancy and admitted mutual domestic violence involving
her and Jose. Andrea stated that she used marijuana
daily and would drink two or three times per week,
including two or three forty ounce bottles of beer and
‘‘a few shots.’’ From 2008 to 2012, while he was in a
relationship with Andrea and was involved in raising
her children, Jose bought, used and possessed illegal
drugs. Jose reported that both he and Andrea smoked
marijuana three to four times a day, even during
Andrea’s pregnancies.
Andrea reported that she and Jose also smoked K-2,
an illegal, synthetic drug chemically similar to mari-
juana. This drug can be very potent and is popular with
marijuana users because it does not show up on drug
screenings unless used within the preceding two hours
of testing. It can produce hallucinations, severe agita-
tion, panic attacks, dangerously elevated heart rate and
blood pressure and seizures.
The trial court relied on the October 14, 2011 affidavit
in support of the commissioner’s motion for temporary
custody, in which the department social worker
Michelle Dwyer ‘‘describes an horrific and chaotic home
life for Andrea, Jose, the children and Andrea’s alco-
holic father, Leander.’’ In August, 2010, Jose assaulted
Andrea in front of Kyara, Jahein and Trevon. Kyara
reported to the police what had happened, stating, ‘‘Jose
. . . punched mommy and dragged her on the floor
. . . .’’
On April 18, 2011, the commissioner filed neglect
petitions on behalf of Kyara, Jahein and their two
younger siblings, but did not seek their removal. In
September, 2011, a behaviorist and clinician at Commu-
nity Resources, Inc., who was providing services to
Andrea, told a department social worker that Andrea
said that Kyara roams the house in the middle of the
night, urinating in her room and that Andrea feared
leaving Kyara and Jahein unsupervised with one
another because Kyara was engaging in inappropriate
behaviors with Jahein. During an arrest for motor vehi-
cle charges on September 30, 2011, Andrea became so
agitated and combative with police she had to be
secured in a jail cell. On October 12, 2011, a department
social worker observed Trevon, then twenty-two
months old, with two black eyes. Andrea and Leander
indicated Trevon fell on a piece of furniture. The next
day, Jose went to Andrea’s home with a friend. Andrea
had been drinking and continued to drink throughout
the afternoon and evening. Jose and Andrea then went
to a motel with Trevon and six month old Kahlil. Jose
reported that Andrea was so drunk she dropped Kahlil
twice, then left the hotel to start walking on Route 6,
wearing no shoes and having unzipped pants. Jose
called police and Andrea was arrested. The court noted
that two days later, on October 14, 2011, the commis-
sioner ‘‘finally’’ sought and obtained an order of tempo-
rary custody of all four children. For Kyara and Jahein,
this was their third removal from Andrea’s care.4
After specifically addressing Andrea and the chil-
dren’s involvement with the department since 2004, the
court, as to the respondent, found that little is known
about him because he refused to provide background
information to the department and refused to partici-
pate in services to which the department might have
referred him. The trial court, referring to the respondent
as the ‘‘male biological parent,’’ determined: ‘‘He left
Andrea shortly after he assaulted her in January, 2005.
He has never served as a father, as that term is normally
understood.’’ (Emphasis added.) The court further
found: ‘‘What is known about this man is that between
2004 and 2010, he has been arrested nine times and
spent a considerable amount of his adult life in prison.
Even in prison he is not a good citizen. His Department
of [Correction] record reflects loss of telephone privi-
leges for thirty days, loss of recreation for fifteen days,
and punitive segregation for seven days. . . . His arrest
and conviction record . . . indicates that [the respon-
dent] is a convicted felon. He has multiple arrests for
assault, breach of peace, disorderly conduct, criminal
impersonation, violation of protective orders, violation
of probation, interfering or resisting arrest and posses-
sion of narcotics. On October 17, 2011, he received a
five year sentence, suspended after eighteen months
with [five] years of probation. He was also convicted
of a subsequent assault and breach of peace upon his
girlfriend, for which he received concurrent time of one
year on each [offense]. This charge was a domestic
violence related assault on the mother of his newest
child. . . . [O]n July 16, 2012, he filed a motion in this
court to have guardianship of Kyara and Jahein trans-
ferred to his new girlfriend, Kimberly B., the same
woman he recently assaulted. Midway through the ter-
mination trial, [the respondent] withdrew his motion
for transfer of guardianship to Kimberly and thereafter,
Kimberly stopped attending the trial. His lawyer
reported that [the respondent] now wanted the children
‘to go to Andrea,’ their mother, instead of his girlfriend.’’
The respondent was released from prison in August,
2012, just a few weeks after the petitions to terminate
his parental rights were filed on July 25, 2012. The court
noted the respondent’s shifting positions before and at
trial relative to the placement of children, neither of
which included any plan that he personally would care
and provide for them. Nonetheless, ‘‘[t]o give full weight
to all the evidence,’’ the court acknowledged the respon-
dent’s attendance at a New Perceptions sixteen class
‘‘Treating Alcohol Dependence Program,’’ in November,
2012. The court, to emphasize its conclusion that the
respondent’s lack of concern for his children was long-
standing and continuing, indicated, ‘‘[t]here is nothing
in the letter from New Perceptions [submitted as
respondent’s Exhibit 1A that] addresses whether [the
respondent] ever expressed love and affection for his
children; ever expressed personal concern over their
health, education and general well-being; ever fulfilled
his duty to supply the necessary food, clothing and
medical care for his children; ever provided them with
an adequate domicile; or ever provided his children
with social and religious guidance. The court concludes
since he did not visit them after his release and never
has provided for them before, that he did not.’’5 The
court determined that the respondent is ‘‘not actively
involved with Kyara and Jahein; he does not support
them and he does not visit them except when he is incar-
cerated.’’
In the termination of parental rights petitions regard-
ing the respondent’s two children, the commissioner
alleged that the respondent had failed to rehabilitate
sufficiently and that termination of the parental rights
was in the children’s best interests. The commissioner
also alleged, regarding the reasonable efforts require-
ment of § 17a-112 (j) (1),6 both that the department
had made reasonable efforts to locate and reunify the
respondent with his children and that he was unable
or unwilling to benefit from such efforts.
The court stated that ‘‘in the adjudicatory phase of
the proceedings, the judicial authority is limited to evi-
dence of events preceding the filing of the petition or the
latest amendment, except, as here, 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, i.e. rehabilitation.’’ The
court found by clear and convincing evidence, without
specifying any temporal period, that the department
had made reasonable efforts to locate the respondent
(‘‘the parents have all been served and appeared and
thus located’’) and that ‘‘[the department] has made
reasonable efforts through the offer of appropriate and
available services to promote a reunification with the
children.’’ Later, the court specifically found as to the
respondent that ‘‘the children, Kyara and Jahein, have
been found in a prior proceeding to have been neglected
or uncared for and the father has failed to achieve such
degree of personal rehabilitation that would encourage
the belief that within a reasonable time, considering
the age and needs of the children, that [the respondent]
could assume a responsible position [in] the life of
the children.’’
In the dispositional phase of the proceeding,7 the
court set forth its findings with regard to the seven
factors set forth in § 17a-112 (k), first restating most of
its adjudicatory findings regarding the respondent. It
then stated that ‘‘given the factual findings made in its
decision, compliance with § 17a-112 (k) as it relates to
the male biological parent [the respondent], only serves
to re-state the obvious: [The respondent] has never
acted as a parent and has refused any services which
might assist him in acquiring parental skills.’’
The court found by clear and convincing evidence
that termination of the respondent’s parental rights in
Kyara and Jahein was in their best interests after consid-
ering various factors, ‘‘including the children’s need
for safety, stability and nurturance; their interest in
sustained growth, development, well-being, and in the
continuity and stability of their environment . . . their
age and individual needs; the length and nature of their
stay in foster care, the contact maintained with their
parents and the potential benefit or detriment to the
children of terminating the parental rights, the genetic
bond to the biological parents . . . and the seven statu-
tory factors and the court’s findings thereon.’’ (Citations
omitted; internal quotation marks omitted.) Additional
facts and procedural history will be set forth as nec-
essary.
We begin by setting forth the statutory requirements
for granting a petition for the termination of parental
rights. ‘‘A hearing on a petition to terminate parental
rights consists of two phases, adjudication and disposi-
tion. . . . If the trial court determines that a statutory
ground for termination exists, it proceeds to the disposi-
tional phase. In the dispositional phase, the trial court
determines whether termination is in the best interest of
the child.’’ (Citation omitted; internal quotations marks
omitted.) In re Roshawn R., 51 Conn. App. 44, 52, 720
A.2d 1112 (1998). In the adjudicatory phase of the pro-
ceeding, the court must make separate determinations
as to reasonable efforts and the statutory grounds for
termination. ‘‘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. . . . 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.’’ (Citation omitted;
emphasis in original; internal quotation marks omitted.)
In re Anthony H., 104 Conn. App. 744, 757–58, 936
A.2d 638 (2007), cert. denied, 285 Conn. 920, 943 A.2d
1100 (2008).
As the statutory ground for terminating the respon-
dent’s rights, the petition alleges failure to achieve per-
sonal rehabilitation under § 17a-112 (j) (3) (B) (i). With
respect to the ground of failure to achieve personal
rehabilitation, set forth in § 17a-112 (j) (3) (B) (i), the
court is required to find that the child (1) ‘‘has been
found by the Superior Court . . . to have been
neglected or uncared for in a prior proceeding,’’ (2)
‘‘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 (3) the parent
‘‘has failed to achieve such degree of personal rehabili-
tation as would encourage the belief that within a rea-
sonable time, considering the age and needs of the child,
such parent could assume a responsible position in the
life of the child.’’
A termination of parental rights under § 17a-112 (j)
on a nonconsensual ground, as has been pleaded as to
the respondent here, requires the court, in the adjudica-
tory phase, to find whether there is clear and convincing
evidence that (1) the department has made reasonable
efforts to locate the parent; and (2) the department has
made reasonable efforts to reunify the child with each
parent unless the court finds that the parent is unable
or unwilling to benefit from reunification efforts.
The factual determination for the court is whether
the parent has achieved rehabilitation as contemplated
under the statute, that is, rehabilitation sufficient to
render the parent able to responsibly care for the child.
‘‘Personal rehabilitation as used in [§ 17a-112 (j) (3)
(B)] refers to the restoration of a parent to his or her
former constructive and useful role as a parent. . . .
[The statute] requires the trial court to analyze the [par-
ent’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
. . . achieved, if any, falls short of that which would
reasonably encourage a belief that at some future date
[the parent] can assume a responsible position in [the]
child’s life.’’ (Citations omitted; internal quotation
marks omitted.) In re Eden F., 250 Conn. 674, 706, 741
A.2d 873 (1999).
An inquiry regarding personal rehabilitation requires
‘‘a historical perspective of the respondent’s child car-
ing and parenting.’’ (Internal quotation marks omitted.)
In re Galen F., 54 Conn. App. 590, 594, 737 A.2d 499
(1999); see In re Christopher B., 117 Conn. App. 773,
786–88, 980 A.2d 961 (2009) (trial court properly relied
on respondent’s history with department prior to filing
of most recent neglect petition); see also In re Jennifer
W., 75 Conn. App. 485, 499, 816 A.2d 697 (court must
make inquiry into full history of respondent’s parenting
abilities), cert. denied, 263 Conn. 917, 821 A.2d 770
(2003).
As to the respondent, the court found by clear and
convincing evidence that his children had been found
neglected in a prior proceeding, that the department
had made reasonable efforts to locate the respondent,
that the respondent had been provided with specific
steps on October 14, 2011, and later, on February 1,
2012, and that the respondent had failed to achieve such
degree of personal rehabilitation that would encourage
the belief that within a reasonable time, considering
the age and needs of the children, he could assume a
responsible position in their lives.
The respondent does not dispute any of these find-
ings, nor does he dispute the court’s findings that it
was in the best interests of Kyara and Jahein that his
parental rights be terminated. His sole claim on appeal
focuses on the court’s finding, by clear and convincing
evidence, that the department had made reasonable
efforts to reunify Kyara and Jahein with him. The court
found: ‘‘[The respondent] was uncooperative and did
not attempt to comply with any rehabilitative services
save the [Treating] Alcohol Dependence program,
which was likely required as a condition of his release
and probation. He has demonstrated no interest in the
children and has made no sustained effort at rehabilita-
tion. He has rebuffed all [department] overtures to
assist him. He is entirely, unreformed.’’
The respondent argues that although the department
presented evidence that he told the department on three
occasions prior to the filing of the termination petitions
on July 25, 2012, that he was not interested in any
department services, the department was required by
the specific steps to continue to make efforts to refer
the respondent to appropriate services until the trial
concluded, and there was no evidence that the depart-
ment even contacted him after his release in August,
2012, to inquire if he had changed his position of nonco-
operation with the department or its services. The com-
missioner responds that the evidence reasonably
supports the court’s findings that the department had
made reasonable efforts to reunify respondent with his
children, regardless of whether the trial court consid-
ered evidence through the date the petitions were filed,
July 25, 2012, the adjudicatory date, or through the
conclusion of trial on February 21, 2013, because the
law does not require a continuation of reasonable
efforts on the part of the department when they will
be futile.
In support of his claim, the respondent asserts that
in accordance with § 17a-112 (j) (1), the court was
required to find that the department had made reason-
able efforts to reunify him with his children until the
time that the trial concluded on February 21, 2013. Next,
the respondent asserts that the evidence did not support
the court’s finding that the department made reasonable
efforts to reunify because there is no evidence that the
department made any efforts, reasonable or otherwise,
after the respondent’s release from prison in August,
2012. We will address each aspect of the claim, in turn.
I
The respondent first argues that § 17a-112 (j) (1)
requires the department to continue to make reasonable
efforts to reunify a parent with his or her child until
the conclusion of the trial on the termination of parental
rights petition unless the court has found at a previous
proceeding that, under subsection (a) of General Stat-
utes § 17a-111b,8 such efforts are no longer appropriate.
In light of the circumstances of the present case, we
need not decide whether the respondent’s interpreta-
tion of § 17a-112 (j) (1), which the respondent asserts
is at odds with our case law interpreting the statute,
is correct.
‘‘As this court has noted, [t]here is a distinction
between a finding on reasonable reunification efforts
under § 17a-112 (j) and consideration of the same under
§ 17a-112 (k). Section 17a-112 (j) (1) requires the court
to make a finding by clear and convincing evidence
in the adjudicatory phase concerning the reasonable
efforts made by the department of children and families
. . . to reunify the child with the parent as a prerequi-
site to terminating parental rights. . . . A court need
not make that finding, however, if the evidence estab-
lishes that the parent is unable or unwilling to benefit
from reunification efforts or if the court determines at
a hearing pursuant to General Statutes § 17a-110 (b)
or General Statutes § 17a-111b that such efforts are
inappropriate. . . .9
‘‘By contrast, [§] 17a-112 (k) requires the court in the
dispositional phase to make written findings regarding
seven statutory factors, including [t]he 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 and
whether the department has made reasonable efforts to
reunite the family . . . .
‘‘As noted, in determining whether the department
has made reasonable efforts to reunify a parent and a
child or whether there is sufficient evidence that a par-
ent is unable or unwilling to benefit from reunification
efforts, the court is required in the adjudicatory phase
to make its assessment on the basis of events preceding
the date on which the termination petition was filed.
See also Practice Book § 35a-7 (a).’’10 (Citations omitted;
footnote altered; internal quotation marks omitted.) In
re Shaiesha O., 93 Conn. App. 42, 47–49, 887 A.2d 415
(2006). This court has consistently held that the court,
‘‘[w]hen making its reasonable efforts determination
during the adjudicatory phase . . . is limited to consid-
ering only those facts preceding the filing of the termina-
tion petition or the most recent amendment to the
petition . . . .’’ In re Paul O., 141 Conn. App. 477, 483,
62 A.3d 637, cert. denied, 308 Conn. 933, 64 A.3d 332
(2013).
The commissioner, however, concedes that, in the
absence of a court order that otherwise relieves the
department of its reasonable efforts obligation, § 17a-
112 (j) (1), as amended by Public Act 06-102, requires
the department to prove that it has continued to make
reasonable efforts up to the time of the trial’s conclu-
sion. We, however, need not accept the respondent’s
invitation to reexamine prior precedent on this issue.
Under the circumstances of this case, although the trial
court’s decision does not, explicitly, indicate the spe-
cific time period for which it considered evidence as to
the reasonable steps element, the evidence reasonably
supports the court’s findings that the department had
made reasonable efforts to reunify respondent with his
children, regardless of whether the trial court consid-
ered evidence through the date the petitions were filed,
July 25, 2010, or through the conclusion of trial on
February 21, 2013.11 This is because, as we discuss in
part II of this opinion, the law does not require a contin-
uation of reasonable efforts on the part of the depart-
ment when such efforts will be futile.
II
We now address the respondent’s second argument,
whether the evidence was sufficient for the court to
find the department made reasonable efforts to reunify
the respondent with his children.
Our Supreme Court in In re Melody L., 290 Conn.
131, 962 A.2d 81 (2009), set forth the standard for
reviewing the trial court’s finding that the department
made reasonable efforts to reunify a parent and a child
in a termination of parental rights case. ‘‘The trial
court’s determination of this issue will not be over-
turned on appeal unless, in light of all of the evidence
in the record, it is clearly erroneous. . . . A finding is
clearly erroneous when either there is no evidence in
the record to support it, or the reviewing court is left
with the definite and firm conviction that a mistake has
been made. . . . On appeal, our function is to deter-
mine whether the trial court’s conclusion was factually
supported and legally correct. . . . In doing so . . .
[g]reat weight is given to the judgment of the trial court
because of [the court’s] opportunity to observe the par-
ties and the evidence. . . . We do 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.’’ (Citations omitted; internal
quotation marks omitted.) Id., 145.
The ‘‘reasonableness’’ of the department’s efforts
must be assessed in the context of each case. ‘‘The word
reasonable is the linchpin on which the department’s
efforts in a particular set of circumstances are to be
adjudged, using the clear and convincing standard of
proof. Neither the word reasonable nor the word efforts
is, however, defined by our legislature or by the federal
act from which the requirement was drawn. . . . [R]ea-
sonable efforts means doing everything reasonable, not
everything possible. . . . [R]easonableness is an objec-
tive standard . . . and whether reasonable efforts have
been proven depends on the careful consideration of
the circumstances of each individual case.’’ (Citation
omitted; internal quotation marks omitted.) In re Ebony
H., 68 Conn. App. 342, 349, 789 A.2d 1158 (2002).
This court has applied the general meaning of ‘‘rea-
sonable’’ and stated that ‘‘[i]t is axiomatic that the law
does not require a useless and futile act.’’ In re Antony
B., 54 Conn. App. 463, 476, 735 A.2d 893 (1999). In In re
Antony B., the trial court’s findings that the department
made reasonable efforts at reunification were upheld
in light of the fact that the respondent rejected many
of the services offered to her and did not choose to
accept services from the department. See id. Several
other cases involving appeals from termination of
parental rights judgments have held that the department
is not required to continue to provide reasonable efforts
to a parent when the parent refuses to participate or
engage in any of those efforts. See In re Christopher
C., 134 Conn. App. 473, 481–82, 39 A.3d 1127 (2012)
(despite department’s repeated offers of referrals and
assistance so respondent could satisfy specific steps
requirements respondent refused to comply); see also
In re Samantha C., 268 Conn. 614, 632–33, 847 A.2d 883
(2004) (not unreasonable for department to abandon
reunification efforts when it did, given age and needs
of the child, time allotted for the respondents’ rehabili-
tation and time child had spent in foster care); In re
Daniel C., 63 Conn. App. 339, 362, 776 A.2d 487 (2001)
(after respondents had not benefited from decade of
efforts and services, it was not unreasonable for depart-
ment to decline to pursue reunification as goal after
children’s final removal).
The evidence in the record demonstrates that there
is sufficient evidence on which to affirm the court’s
finding that the department made reasonable efforts.
In making its reasonable efforts finding as to the respon-
dent, the court’s decision may reasonably be interpreted
as including the interest, or lack thereof, the respondent
had in cooperating with reunification efforts before and
after the time of the adjudicatory date, July 25, 2011,
up until the date the trial concluded, February 21, 2012.
Initially, we observe that, to the extent that the assess-
ment of reasonable efforts is made through the date of
the filing of the termination petitions, the respondent
concedes that the department’s wholly unsuccessful
efforts were reasonable. The record reflects that during
the pendency of the earlier neglect petitions affecting
Kyara and Jahein, filed in 2005 and 2009, the respondent
was offered reunification services. On April, 11, 2011,
neglect petitions were filed on behalf of Kyara and
Jahein and their two younger siblings. At three separate
times prior to the filing of the termination of parental
rights petitions, the respondent expressly stated to the
department worker his unwillingness to engage in any
services. On April 25, 2011, prior to his incarceration,
one week after neglect petitions for his children had
been filed for the third time, and after he had been
presented with preliminary specific steps outlining a
plan for reunification efforts, the respondent told a
department worker he ‘‘did not want to be involved
with the department.’’
It is clear from the record that during the period of
time just prior to the children’s removal in October,
2011, the respondent had an opportunity to observe
their chaotic living environment. Andrea reported that
the respondent spent time in the backyard of the home
drinking with Leander, but he ignored his children,
Kyara and Jahein. On September 14, 2011, a Community
Residences, Inc., behaviorist, L. J. Grenada, who pro-
vided a home-based intensive family preservation ser-
vice, observed seven year old Kyara display highly
seductive body language in an effort to gain the respon-
dent’s attention while he socialized across the street
from the family home. Soon after the court’s October
14, 2011 orders granting temporary custody, placing his
children in department foster care, the respondent was
arrested and incarcerated for assaulting his girlfriend,
Kimberly B. At the time of the children’s last removal
in October, 2011, Andrea reported to the department
that the respondent ‘‘does not acknowledge his children
in any way.’’ On October 17, 2011, just after his two
children were ordered into the commissioner’s custody
for the second time, he received a five year sentence,
suspended after eighteen months with five years of
probation after being convicted of a 2010 assault and
breach of peace involving domestic violence with the
mother of his youngest child, Kimberly B.
On February 1, 2012, the date the children were adju-
dicated neglected, the respondent was provided with
specific steps, which he signed. The steps indicated to
the respondent that services would be determined once
he was released from incarceration. At the bottom of
the specific steps form, the respondent acknowledged
that if he did not follow the steps, the chance that his
parental rights would be terminated would increase. He
also acknowledged that he understood that he should
contact his lawyer and/or the department worker if he
needed help in reaching any of his steps. The depart-
ment could not be faulted for failing to provide any
services for the respondent prior to his release from
prison. His incarceration began before the children
were taken from Andrea’s custody and endured until
August, 2012. The record also reflects that he did not
or was unable to engage in any programs offered to
inmates in the correctional facility. He was provided
with two opportunities to participate in a scheduled
administrative case review concerning his children via
teleconference on November 29, 2011, and May 18, 2012,
but did not call in.
At least twice, a department worker talked to the
respondent about his children’s cases, in November,
2011, and April, 2012, and suggested services in which
he could participate when released. In both these con-
versations, the respondent stated that ‘‘he would not
be willing to do anything once he was released.’’ He
also stated that the department is ‘‘full of it,’’ that he
did not want to attend any treatment programs once
he is released from prison, and that he was not going
to ‘‘jump through any hoops.’’ During this incarceration,
at his request, the department provided the respondent
with visits with the children by bringing the children
on a monthly basis to the correctional facility where
the respondent was housed. During these visits, the
record reflects he did not engage with his children. He
would wait for them to acknowledge him and he was
demeaning to them. The respondent did not exercise
his right to visit his children after his release.
On July 16, 2012, while objecting to the department’s
permanency plans of termination of parental rights for
both his children, the respondent filed a motion to trans-
fer guardianship of them to Kimberly B., the girlfriend
he had assaulted in 2011. There is no indication any-
where in the record that the respondent advised the
court at that time, or upon his imminent release, that
he was willing to accept referrals for services.
At the beginning of the trial, the record reflects that
the respondent reminded the court that consideration
of his motion to transfer guardianship to Kimberly B.
was to be part of the consolidated proceedings. The
only evidence of a program he had attended to address
issues of substance abuse and parenting identified in his
specific steps was a sixteen week alcohol dependence
program at New Perceptions. This program was not a
referral he accepted from the department, allowing for
the further reasonable inference that he still did not
wish to request its assistance and preferred to choose
his own route, or that he only participated in this pro-
gram because of the conditions of his probation.
Although he argued that his attendance at this program,
not selected by the department, was evidence of his
rehabilitation, the court found his involvement in the
program, in and of itself, was insufficient proof as to
that fact. In addition, the department worker testified
that the respondent had made no indication to the
department after his release from prison that he was
willing to engage in services that would assist in his
rehabilitation.
Even after withdrawing his motion to transfer guard-
ianship to Kimberly B. near the end of the trial, the
respondent, despite his claimed rehabilitation and the
evidence presented during the trial that Andrea had not
fully addressed her parenting issues, advocated that the
children should be returned to Andrea’s care. At no
time during the trial did the respondent indicate he was
ready to begin reunification efforts and comply with his
specific steps as part of his effort to avoid termination.12
In the beginning of its memorandum of decision, the
court found that the department has made reasonable
efforts through the offer of appropriate and available
services to promote a reunification with the children.
Later on, in setting forth the factual basis for finding
‘‘reasonable efforts and compliance with specific
steps,’’ it found that the respondent ‘‘has made no sus-
tained effort at rehabilitation’’ and ‘‘has rebuffed all
[department] overtures to assist him,’’ thereby high-
lighting the futility of the department’s efforts. The evi-
dence supports the court’s finding that the respondent
was never inclined to cooperate with the department
or engage in rehabilitative programs. The court noted,
and the record reflects, periods of time between the
removal of the children in October, 2011, and the trial
in February, 2013, in which Andrea and Jose partici-
pated in services to promote reunification, thereby
expending at least some effort to comply with specific
steps. This participation also reflects the department’s
willingness to continue to work up until the time of
trial with willing participants like Andrea and Jose. As
to the respondent, the court, expressing a desire to ‘‘give
full weight to all the evidence,’’ cites one rehabilitative
service in which he engaged, an alcohol dependence
treatment program in which the respondent engaged in
the fall of 2012, after the petitions for termination of
parental rights were filed, which the court noted ‘‘was
likely required as a condition of his release and proba-
tion.’’ In discussing the department’s reasonable efforts
and the respondent’s compliance with specific steps,
the court found that the respondent ‘‘was uncooperative
and did not attempt to comply with any rehabilitative
services save the [Treating] Alcohol Dependence pro-
gram. . . . He has demonstrated no interest in the chil-
dren and has made no sustained effort at rehabilitation.
He has rebuffed all [department] overtures to assist
him. He is entirely, unreformed.’’
‘‘Reviewing the court’s findings and conclusions
under the clearly erroneous standard . . . we cannot
disturb its decision to terminate parental rights where
the totality of the evidence, including reasonable infer-
ences [drawn] therefrom, supports the [court’s] verdict
. . . .’’ (Citation omitted; internal quotation marks
omitted.) In re Sheena I., 63 Conn. App. 713, 725, 778
A.2d 997 (2001). Even were we to assume, as the respon-
dent argues, that the court was bound to evaluate the
department’s efforts up until the conclusion of the trial,
there is sufficient evidence in the record to support the
reasonable inference that the respondent, right up to
the conclusion of the trial, never altered, by word or
deed, his expressed position that he did not wish to
provide for his children or cooperate with the depart-
ment. Given the evidence and findings of the court in
the adjudicatory section of its memorandum of deci-
sion, the record reasonably supports the inference that
the court’s conclusion, in its reasonable efforts finding,
that the respondent ‘‘was uncooperative and did not
attempt to comply with any rehabilitative services save
the [Treating] Alcohol Dependence program,’’ which
the respondent did not attend until November, 2012,
after the adjudicatory date, was based on evidence it
considered up until the date the trial concluded.
In the dispositional phase, in making the seven statu-
tory findings required under § 17a-112 (k) as to the
respondent in its articulation, including a second find-
ing that the department made reasonable efforts at
reunification, the court first restated all of its adjudica-
tory findings, which had been found by clear and con-
vincing evidence earlier in its decision, and noted that
in making the seven statutory findings, the court was
restating the obvious. Thus, the court indicated that
there was nothing in the evidence through to the conclu-
sion of the trial that altered its perception, as stated
in its finding regarding the department’s reasonable
efforts, that the respondent is ‘‘entirely unreformed,’’
having demonstrated ‘‘no interest in the children’’ and
made ‘‘no sustained effort at rehabilitation.’’
The futility of any attempts on the part of the depart-
ment to engage with and involve the respondent in
reunification services could not be any clearer. ‘‘The
department is not required to provide reasonable efforts
to a parent when the parent refuses to participate or
engage in any of those efforts.’’ In re Christopher C.,
supra, 134 Conn. App. 478 n.7. The court’s conclusion
that the department made reasonable efforts to reunify
the respondent with his children, all of which he
rebuffed, is not clearly erroneous. Accordingly, the
court did not err in terminating the respondent’s paren-
tal rights.
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.
** January 16, 2014, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
Trial was held over two days, on February 19 and 21, 2012. The petitions
for the termination of parental rights to four siblings, Kyara H. and Jahein
H., and Trevon M. and Kahlil M., were consolidated for trial with hearings
on the petitioner’s motions for review of permanency plans for the four
children and the respondent’s motion to transfer guardianship of Kyara and
Jahein to his girlfriend, Kimberly B. The respondent mother, Andrea K., also
has appealed to this court from the trial court’s judgments terminating her
parental rights as to all four children. See In re Kyara H., 147 Conn. App.
, A.3d (2013). Jose M., the father of Trevon M. and Kahlil M.,
has not appealed the termination of his parental rights in his two children.
For purposes of this opinion, Tyrone H. will be referred to as the respondent.
2
The trial court specifically found that after the removal of Jahein from
Andrea in 2005, Andrea participated in reunification services, and that after
the removal of Kyara, Jahein and their younger sibling, Trevon, from Andrea
in 2009, Andrea and Jose both participated in such services. The trial court
noted that their cooperation resulted in the return of Andrea’s children
to her care. No such finding of compliance with reunification services or
cooperation was made by the court regarding the respondent during these
same periods, and there is no indication in the record that he engaged in
any reunification services during the time periods subsequent to the filing
of the prior neglect petitions affecting Kyara and Jahein.
3
The court found that Andrea and Jose also had another child in 2012,
who, as of the time of trial, was in the care of one of Andrea’s relatives.
That child is not the subject of Andrea’s appeal.
4
There was evidence that, in addition to being removed from Andrea’s
home on two separate occasions pursuant to the commissioner’s motions
for orders of temporary custody, Kyara and Jahein, with the acquiescence
of the department, were voluntarily placed with a paternal uncle after the
department reopened their cases due to domestic violence occurring
between Andrea and Jose in February, 2009. This arrangement only lasted
about one month and the uncle returned the children to Andrea without
notifying the department. The department learned that the children were
back in Andrea’s care when Jahein told school staff that he played with a
gun and bullets at Andrea’s home.
5
In addition, the record reflects that following his release, the respondent
never informed the department he had changed his explicitly and consis-
tently expressed position that he would not accept services from the depart-
ment. Furthermore, he never argued that, had he only been provided with
more guidance or additional programs from the department, he could have
rehabilitated. He argued that the evidence was insufficient to show he had
failed to rehabilitate.
6
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 in accordance with subsection (a) of section 17a-111b, unless
the court finds in this proceeding that the parent is unable or unwilling to
benefit from reunification efforts, except that such finding is not required
if the court has determined at a hearing pursuant to section 17a-111b, or
determines at trial on the petition, that such efforts are not required. . . .’’
7
The court granted the respondent’s request for an articulation concerning
its findings in the dispositional phase of the proceeding.
8
General Statutes § 17a-111b (a) provides in relevant part: ‘‘The Commis-
sioner of Children and Families shall make reasonable efforts to reunify a
parent with a child unless the court (1) determines that such efforts are
not required . . . or (2) has approved a permanency plan other than reunifi-
cation pursuant to subsection (k) of section 46b-129.’’
9
In the present case, there was no judicial determination that reunification
efforts were inappropriate pursuant to General Statutes §§ 17a-110 (b) or
17a-111b, and although alleged by the commissioner, the court did not find
that the respondent was unable or unwilling to benefit from reunification
efforts.
10
Practice Book § 35a-7 (a) provides: ‘‘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.’’
11
The court did not expressly state whether its consideration of the depart-
ment’s efforts encompassed events only up to July 25, 2012, the filing date
of the petitions, and the respondent did not seek articulation on this ground.
Moreover, as we will discuss in part II of this opinion, a careful reading of
the court’s decision reflects that the court, in fact, appears to have considered
evidence and made findings concerning reasonable efforts made up until
the time of trial. Thus, the respondent has not demonstrated that the court
limited its evaluation of the department’s efforts to the date the petitions
were filed. Although, under the circumstances of the present case, we need
not determine whether the court was required to consider reasonable efforts
until the time of trial, we note that ‘‘we read an ambiguous record, in the
absence of a motion for articulation, to support rather than undermine the
judgment. . . . Because the [defendant] did not seek the trial court’s articu-
lation in that regard, we must assume [that] the [court] acted properly.’’
(Internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 30 n.21,
836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed.
2d 254 (2004). Absent an articulation regarding the legal basis for the trial
court’s decision, a claim of error cannot be predicated on the assumption
that the trial court acted erroneously. See State v. Richard S., 143 Conn.
App. 596, 608, 70 A.3d 1110, cert. denied, 310 Conn. 912, 76 A.3d 628 (2013).
12
We reject the commissioner’s argument that the respondent did not
preserve his claim that reasonable efforts were not made. The respondent did
not need to specifically raise a claim as to the reasonable efforts requirement
because it is an element that § 17a-112 (j) (1) requires be proven. Thus, it
was not incumbent on the respondent to alert the court that it must apply
the statute to the issue before it. See Fenton v. Connecticut Hospital Assn.
Workers’ Compensation Trust, 58 Conn. App. 45, 54, 752 A.2d 65 (‘‘[j]udges
are presumed to know the law . . . and to apply it correctly’’ [internal
quotation marks omitted]), cert. denied, 254 Conn. 911, 759 A.2d 504 (2000).