In re Devaun J.

953 A.2d 913

109 Conn.App. 832

In re DEVAUN J.^*

No. 28502.

Appellate Court of Connecticut.

Argued April 25, 2008.

Decided August 26, 2008.

Gail A. Bedoukian, for the appellant (respondent mother).

Colleen Broderick, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

Susan Rothenberg, Stamford, for the minor child.

BISHOP, LAVINE and BORDEN, Js.

BORDEN, J.

The respondent mother of Devaun J. appeals from the judgment of the trial court terminating her parental rights.¹ The respondent claims that the court improperly: (1) failed to consider her statutory choice of a voluntary termination and open adoption; (2) determined that she had not achieved a sufficient degree of personal rehabilitation and that there was no ongoing parent-child relationship; and (3) considered certain witnesses as expert witnesses. The respondent also claims that the lateness of a postjudgment report should invalidate the judgment of termination. We affirm the judgment of the trial court.

On April 11, 2002, the petitioner, the commissioner of children and families, took custody of the child pursuant to a ninety-six hour hold² and the next day filed a motion for temporary custody and a neglect petition. The court granted the motion, on the ground that the child was in immediate physical danger, and sustained the order on April 17, 2002. On May 27, 2003, after a contested hearing, the court adjudicated the child neglected and committed him to the custody of the petitioner. On March 25, 2004, the court, Black, J., determined that further efforts at reunification of the child with the respondent were not appropriate. No appeal was filed from the neglect judgment or from the determination that further efforts at reunification were not appropriate.³

In May, 2004, the petitioner filed this termination petition on two grounds: (1) the child had previously been adjudicated neglected, and the respondent had failed to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the child's age and needs, she could assume a responsible position in his life, as provided in General Statutes § 17a-112(j)(3)(B);⁴ and (2) there was no ongoing parent-child relationship between them, as provided in § 17a-112(j)(3)(D).⁵ The termination trial took place on July 10 and 24, 2006, and the court rendered its decision on August 8, 2006, granting the termination petition on both grounds. Thereafter, the respondent moved to open the judgment. The court denied the motion, and this appeal followed.

The court found the following facts. On April 12, 2002, the child, then age five, was removed from the respondent's care pursuant to the order of temporary custody and in November, 2002, was placed in foster care with his current foster mother, Fanny J. From April, 2002, to November, 2003, the respondent visited with the child twice, each time supervised by the department of children and families (department). During that time, the child was diagnosed as suffering from post-traumatic stress disorder and expressive disorder with expressive receptive language deficits (nonverbal), all of which produced aggressive behavior. He experienced flashbacks to his earlier childhood when the respondent disciplined him by regularly beating him with a belt, causing him to engage in violent outbursts against animals and his toys. A mere touch would set off a violent response. This led to three psychiatric hospitalizations and dictated the need for a highly trained therapeutic foster home, which was met when he was placed with Fanny J. From December, 2003, through February, 2004, the respondent visited with the child twice per month. Then, visitation ceased for another two months when the respondent went to Haiti.

The court further found that in October, 2003, and April, 2004, the child's therapist recommended that all visitations with the respondent cease because they caused instability and deterioration of the child's condition. The child saw the visits as a threat to his security and a risk of disruption of the permanency of his placement with Fanny J. Accordingly, the court suspended visitation on April 15, 2004, until June 3, 2004, when it reinstated visitation at the department's discretion. Visits occurred irregularly until May, 2005, when all visitation ceased on the recommendation of a clinical social worker who had been engaged by the respondent to supervise visits. She concluded that the respondent did not understand the child's needs and was incapable or unwilling to achieve the necessary level of understanding. The court found strong evidence of this in the fact that for a period of eighteen months, the respondent had chosen to visit only twice because she claimed that the visits, which were supervised by the department, brought her too close to the petitioner, whom she did not trust, and brought back unpleasant memories of her experiences with the petitioner. Thus, at the time of the trial on the termination petition, the respondent had not visited with the child in more than one year.

The court found further that the respondent has significant emotional problems that interfere with her parenting. She is unable to settle down and develop stable relationships for herself and her children, including the child at issue. She is unreliable; she has a narcissistic personality; she denies her neglect of the child; she fails to recognize his need for support services and the need for remedial measures to effect a reunification with the child; she has no understanding of his problems, limitations and psychological needs; and she does not believe that he needs medication. She is likely to place her needs ahead of his, and it is unclear that she would ever be able to gain the proper understanding of the child's needs.

On the basis of all of this evidence and these findings, the court found that it was clearly and convincingly established that the respondent has not, in the more than four years that the child has been in the petitioner's custody, and will not, in the foreseeable future, gain such a level of rehabilitation as to satisfy the requirements of the statute. Thus, the court found that the petitioner had established the first ground for termination.

The court then turned to the second ground, namely, that there is no ongoing parent-child relationship, meaning the relationship that ordinarily develops as a result of a parent having met on a day-to-day basis the physical, emotional, moral and educational needs of the child and that to allow further time for the establishment or reestablishment of such a relationship would be detrimental to the child's best interest. In this respect, the court found the following facts.

The child was, at the time of the decision, nine years old and had not been in the respondent's care for more than four years. The child had not seen the respondent in more than one year and only twice from April, 2002 to November, 2003. During that period, almost half of the child's life, he developed a loving, nurturing, dependent relationship with Fanny J., who is devoted to his well-being and meets his specialized needs. Introduction of reunification efforts into his life would cause him to relive the physical abuse he suffered at the respondent's hands in his early childhood. Before he was placed in the petitioner's custody, the respondent's parenting caused at least three psychiatric hospitalizations for violent, uncontrolled behavior. The child has tried to repress the memory of his early years with the respondent, does not remember her name and is reluctant to recapture memories of his early childhood because they make him sad. Revival of these memories is not in his best interest. Whatever relationship he once had with the respondent no longer exists, and she will never be in a position to establish or reestablish such a relationship.

The court then addressed the respondent's contention that the court deny termination in favor of a permanency plan of long-term foster care with Fanny J. so that the respondent could visit with the child from time to time and remain a part of his life. The court specifically found that "such a result would be severely detrimental to [the child's] best interest and is therefore rejected."

The court then made all of the specific findings required by § 17a-112(k). The court concluded by specifically finding by clear and convincing evidence that both statutory grounds alleged had been proven and that it was in the best interest of the child that the respondent's parental rights be terminated. The court appointed the petitioner as the child's statutory parent.

I

The respondent first claims that the court improperly failed to consider her statutory choice of a voluntary termination of her parental rights coupled with an open adoption, as provided in § 17a-112(b).⁶

The respondent's claim arises out of the following procedural context. The court filed its memorandum of decision on August 8, 2006. On October 18, 2006, the respondent filed a "Revised Motion To Open The Judgment,"⁷ in which she raised, for the first time, the claim that she was entitled to consideration of an open adoption pursuant to the statute. Specifically, she alleged that "it was only during testimony that the foster mother stated for the first time that she would `consider adopting' if the [c]ourt `were to free [the child] up for adoption.... As a result, the [respondent] never had the opportunity to voluntarily terminate her rights. Once the foster mother stated she was willing to adopt, the trial should have been suspended." (Citation omitted.) At the subsequent hearing on the motion, the respondent reiterated that when, on the first day of trial, namely, July 10, 2006, the foster mother indicated that she was willing to adopt the child, "the trial...