In re Eden F.

250 Conn. 674

741 A.2d 873

IN RE EDEN F. ET AL.¹

(SC 15965)²

Supreme Court of Connecticut.

Argued March 19, 1999.

Officially released September 21, 1999.

Callahan, C. J., and Borden, Berdon, Palmer and McDonald, Js.³ Susan T. Pearlman, assistant attorney general, with whom were Benjamin Zivyon, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Eliot Prescott, assistant attorney general, for the appellant (petitioner).

Roger E. Bunker, for the appellee (respondent mother).

David T. Stone, for the minor children. Linda Pearce Prestley, child advocate, and Barbara J. Claire, associate child advocate, filed a brief for the office of the child advocate as amicus curiae.

Opinion

PALMER, J.

In this certified appeal, we must decide whether the Appellate Court properly reversed the judgments of the trial court terminating the parental rights of the respondent mother, Ann F., with respect to her two daughters, Eden and Joann. Specifically, we must determine whether the Appellate Court properly concluded that, pursuant to General Statutes (Rev. to 1995) § 17a-112,⁴ the petitioner, the commissioner of children and families (commissioner), was required to establish by clear and convincing evidence that reasonable efforts were made to reunify Ann F. with Eden and Joann as a predicate to the termination of Ann F.'s parental rights with respect to her two children. We

and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child....

"(d) Except in the case where termination 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 or provided 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 Assistance and] Child Welfare Act of 1980, as amended; (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 his parents, any guardian of his 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 his circumstances, conduct, or conditions to make it in the best interest of the child to return him to his 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 maintenance 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...."

General Statutes (Rev. to 1995) § 17a-112 (b), now codified at § 17a-112 (c), was amended by Public Acts 1995, No. 95-238, § 3. See footnote 17 of this opinion. That amendment provides that, with certain exceptions not applicable in this case, the trial court may grant a petition for the termination of parental rights only if it finds, by clear and convincing evidence, that the department of children and families has made reasonable efforts to reunify the child with the parent. Although further revisions since have been made to this statutory subsection, those revisions are not relevant to any of the issues presented by this case.

Unless otherwise provided, all references to § 17a-112 throughout this opinion are to the 1995 revision. conclude that, contrary to the determination of the Appellate Court, the commissioner was not required to make such a showing under the applicable statutory provisions.⁵ We also address two additional claims that Ann F. raised in the Appellate Court but that were not decided by that court,⁶ namely, that the trial court improperly: (1) found that Ann F. had failed to rehabilitate herself; and (2) concluded that the termination of Ann F.'s parental rights was in Eden's best interest.⁷ We reject these claims and reverse the judgment of the Appellate Court.

The opinion of the Appellate Court; In re Eden F., 48 Conn. App. 290, 710 A.2d 771 (1998); sets forth the following relevant facts. "Ann F. was born in Hartford on February 27, 1959 ... [and] spent the majority of her childhood in a foster home. In 1975, at the age of fifteen,⁸ Ann F. was admitted for psychiatric care to Norwich State Hospital (Norwich). Thereafter, she was admitted to Norwich on several more occasions with one stay lasting for more than one year.⁹ At Norwich, she was diagnosed with chronic undifferentiated schizophrenia and other disorders over the years including bipolar disorder with psychotic features.

"While at Norwich, Ann F. met and married Thomas F.¹⁰ in 1982 and her first child, Eden, was born on July 2, 1988. Eden is a child with special needs. [The department of children and youth services, now the department of children and families (department)]¹¹ removed Eden from Ann F.'s care when Eden was only five days old, due to Ann F.'s psychiatric state. The court granted temporary custody of Eden to [the department] on July 15, 1988. On September 22, 1989, Eden was committed to the commissioner ... as a neglected child because of the hospital admission of Ann F. On that date, Ann F. signed expectations¹² that were accepted by the court. Eden remained in foster care until she was nearly three years old.

"Although on January 31, 1991, the court granted [the department's] petition to extend Eden's commitment, Eden began living with [Ann F.] on February 1, 1991. While Eden lived with [Ann F., the department] worked with Ann F. and provided a number of services to her. On June 13, 1991, the [department] filed a petition to revoke Eden's commitment. The court granted [the department's] motion to revoke commitment on August 7, 1991.

"In 1992, [the department] received four referrals concerning Ann F.'s conduct with Eden, including a report of Ann F.'s yelling, shaking and hitting Eden. Another referral, which was made just prior to the birth of Ann F.'s second child, Joann, on September 8, 1992, was from the Manchester police department on July 16, 1992, alleging that ... Ann F.... is a repeated complainant of sexual assault and strange goings on at the home. She claims that Randy M., the [alleged] father of ... [Joann], sneaks in through the window at about 1:30 a.m. and sexually assaults [her].' That report also stated that she usually slept through it. It also indicated that `[t]he condition of the apartment is very slovenly with trash and clutter strewn about. The smoke detector was also deactivated due to the removal of the battery.' In a call to [the department], Ann F. reported that her boyfriend, Randy M., would break into her apartment with seven men who sexually harassed her and performed witchcraft techniques on her.

"In March, 1993, [the department] received a referral from the Manchester Memorial Hospital emergency room that Ann F. had walked out of the visitor's lounge leaving Eden, then age four, to care for Joann, then seven months old. At that time, Ann F. was admitted to [that] hospital on a physician's emergency certificate,¹³ and [the department] invoked a ninety-six hour hold on both children, who have been cared for in the same foster home ever since. Ann F. was transferred from Manchester Memorial Hospital to Cedarcrest Regional Hospital (Cedarcrest), where she remained until August, 1993. Upon her discharge from Cedarcrest, she began receiving services from the Manchester Memorial Hospital Outpatient Mental Health Clinic [(clinic)] and the Horizons program [(Horizons)]. Horizons provides services to the psychologically impaired so they can live independently in the community. Her case manager, Candace Stone, worked with Ann F. up [until] the time of trial.

"On March 12, 1993, [the department] filed a petition seeking the commitment of Eden and Joann. On that date, the court granted an order of temporary custody of both children to [the department]. On October 21, 1993, the court adjudicated Eden and Joann neglected based on Ann F.'s plea of nolo contendere. The court committed the children to the department for the statutory period. Also on that date, Ann F. signed, and the court entered, a new set of expectations.

"Ann F. was hospitalized three times in 1993 for mental instability. Eden and Joann were taken for weekly visits with Ann F. while she was in Cedarcrest in 1993. Weekly visitation continued after she returned home. Ann F. continued outpatient treatment at [the clinic]. Throughout the remainder of 1993 and into the first six months of 1994, Ann F. stabilized within her limitations and participated in weekly supervised visits with her two children.

"On June 1, 1994, the department developed what it called `an extensive plan ... to determine what was in the best interest of [Ann F.'s] children.' This plan was to give [Ann F.] every opportunity to prove her parenting abilities and was to be executed through `the Exchange Club,' which would supervise the children's visits with Ann F. The length of these visits would be increased from one hour to one and one-half hours for seven weeks. If these visits were successful, a...