In re Jason M.

140 Conn.App. 708

59 A.3d 902

In re JASON M. et al.^*

No. 34585.

Appellate Court of Connecticut.

Argued Nov. 14, 2012.

Decided Jan. 30, 2013.^**

Charline P., pro se, the appellant (respondent mother).

Michael Besso, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).

Marisa F. Schafer, Fairfield, for the minor child Jason M.

Barry A. Charles, Bridgeport, for the minor child Rosalinda P.

Christopher P. Brennan, for the minor children Hudsana P. and Richardson P.

BEACH, BEAR and DUPONT, Js.

BEAR, J.

The respondent mother, Charline P., appeals from the judgments of the trial court, rendered in favor of the petitioner, the commissioner of children and families, terminating the respondent's parental rights as to four of her minor children: Jason M., Rosalinda P., Hudsana P. and Richardson P.¹ On appeal, the respondent claims that the trial court (1) violated her due process right to notice and her right to confrontation; (2) made clearly erroneous factual findings; (3) improperly shifted the burden of proof to her on the issue of her personal rehabilitation; and (4) abused its discretion in denying several of her motions.² We affirm the judgments of the trial court.³

The following facts, which were found by the trial court, and procedural history are relevant to our resolution of the respondent's claims. In the cases that are on appeal, the petitioner filed termination of parental rights petitions against the respondent concerning four of her seven children: Jason, born on December 16, 2000; Rosalinda, born on May 12, 2004; Hudsana, born on January 23, 2007; and Richardson, born on May 27, 2008.⁴

The proceedings that eventually resulted in the filing of the petitions began on October 10, 2007, when the petitioner filed neglect petitions and motions for orders of temporary custody concerning Jason, Rosalinda and Hudsana as a result of the respondent's involuntary hospitalization due to certain mental health conditions. The court granted the orders of temporary custody. The court found the following additional facts.

The day after Richardson was born, the department of children and families (department) removed him on a ninety-six hour hold. See General Statutes § 17a–101g. On May 29, 2008, the petitioner filed a neglect petition on the grounds that Richardson had been denied proper care and attention, physically, educationally, emotionally or morally, and that he had been permitted to live under conditions, circumstances or associations injurious to his well-being (conditions injurious).

On May 21, 2009, the court adjudicated Jason, Rosalinda and Hudsana neglected pursuant to General Statutes (Rev. to 2007) § 46b–120 (9)(A)(B) and (C) and committed the children to the care, custody and control of the department. On June 17, 2009, the petitioner filed a motion to review the permanency plan of reunification with the respondent for Jason, Rosalinda and Hudsana.

On October 28, 2009, the respondent entered a no contest plea to the conditions injurious ground of the neglect petition with respect to Richardson, and the child was adjudicated neglected and placed under protective supervision with the respondent for a period of six months. Specific steps were ordered for the respondent. On November 13, 2009, the respondent reported to the department that she needed a full-time nanny for Richardson and gave the department until December 2, 2009, to decide if it would pay for the nanny; otherwise, she planned to send Richardson to Haiti. On November 18, 2009, the petitioner filed an ex parte motion for an order of temporary custody for Richardson, which was granted by the court. On November 20, 2009, the petitioner filed a motion to modify disposition concerning Richardson from protective supervision to commitment. On April 21, 2010, the court sustained the order of temporary custody for Richardson and committed him to the care, custody and control of the petitioner.

On April 21, 2010, the petitioner filed a motion to review the permanency plan of termination of parental rights and adoption for Jason, Rosalinda, Hudsana and Richardson. On May 4, 2010, the respondent filed an objection thereto. On July 26, 2010, the petitioner filed petitions relatingto each of the children: with respect to Jason, the petitioner sought to terminate the parental rights of the respondent on the basis of the respondent's failure to achieve a sufficient degree of personal rehabilitation and a lack of an ongoing parent-child relationship; with respect to Rosalinda and Hudsana, the petitioner sought to terminate the parental rights of the respondent on the basis of the respondent's failure to rehabilitate, no ongoing parent-child relationship, and her failure to rehabilitate concerning a child younger than age seven after a prior termination of her parental rights as to another child; and, with respect to Richardson, the petitioner sought to terminate the parental rights of the respondent on the basis of her failure to rehabilitate and her failure to rehabilitate concerning a child younger than age seven after a prior termination of her parental rights as to another child.⁵

On July 27, 2010, the respondent filed a motion to modify the dispositions from commitment to protective supervision. On August 6, 2010, the petitioner filed a motion for a reasonable efforts determination, which the court, on August 27, 2010, deferred until trial on the petitions. On August 30, 2011, the court approved a stipulated agreement that provided for a reunification plan. Under the plan, developed in consultation with Rodolfo Rosado, a psychologist, the respondent was provided with an opportunity to demonstrate her ability to parent appropriately her children who were not in her care. Jason was to be reunified with the respondent first and, if that reunification was successful, then the other children would be reunified sequentially.

On November 7, 2011, in court, the parties discussed Rosado's recommendation against further reunifications based on what had transpired after Jason was reunified with the respondent. Jason's functioning had significantly deteriorated during his trial reunification period. He was having significant behavioral issues at school. Rosado opined that “Jason's behavior gets worse the more time he spends with [the respondent].” On December 20, 2011, the court suspended the reunification plan and scheduled the matter for trial based on the respondent's lack of progress in reunifying with Jason.

The termination of parental rights trial occurred on April 16, 2012. On April 24, 2012, the court filed its memorandum of decision in which it concluded that the petitioner had proven by clear and convincing evidence, as required by General Statutes § 17a–112 (j)(1), that the department had made reasonable efforts to reunify the children with the respondent.⁶ The court also concluded that the petitioner had proven by clear and convincing evidence that the respondent had failed to achieve a sufficient degree of rehabilitation with respect to any of the four children, as required by § 17a–112 (j)(3)(B)(i), and that there existed no ongoing parent-child relationship between the respondent and Jason, Rosalinda and Hudsana, pursuantto § 17a–112 (j)(3)(D).⁷ Finally, the court concluded that the petitioner had proven by clear and convincing evidence that termination of the respondent's parental rights was in the best interest of the children, as required by § 17a–112 (j)(2).⁸ After making the necessary findings, as required by § 17a–112 (k), the court concluded that the parental rights of the respondent should be terminated. Accordingly, the court granted the petitions, granted the motion for a determination that the department had made reasonable efforts for reunification and denied the respondent's motion to modify disposition from commitment to protective supervision. This appeal followed. Additional facts will be set forth as necessary.

I

The respondent's first claim on appeal is that she lacked notice that the trial would begin on April 16, 2012. The respondent claims that her due process rights and her right to confrontation were violated because she did not receive notice of the trial and that the trial court proceeded in her absence.⁹ We are not persuaded.

“[T]he essence of due process is the requirement that a person in jeopardy of serious loss [be given] notice of the case against him and [an] opportunity to meet it.” (Internal quotation marks omitted.) State v. Lopez, 235 Conn. 487, 493, 668 A.2d 360 (1995). “[F]or more than a century the central meaning of procedural due process has been clear: Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.... It is equally fundamental that the right to notice and an opportunity to be heard must be granted at a meaningful time and in a meaningful manner.... [T]hese principles require that a [party] have ... an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally.” (Citation omitted; internal quotation marks omitted.) In re DeLeon J., 290 Conn. 371, 378, 963 A.2d 53 (2009). “Due process requires notice that would be deemed constitutionally adequate in a civil or criminal proceeding.... Notice, to complywith due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must set forth the alleged misconduct with particularity.” (Citations omitted; internal quotation marks omitted.) In re Donna M., 33 Conn.App. 632, 638, 637 A.2d 795, cert. denied, 229 Conn. 912, 642 A.2d 1207 (1994).

The respondent did not appear at the trial on April 16, 2012. She avers that she did not receive notice.¹⁰ The record, however, reflects otherwise....