In re Kyara H.

147 Conn.App. 855

83 A.3d 1264

In re KYARA H. et al.^*

No. 35506.

Appellate Court of Connecticut.

Argued Oct. 21, 2013.

Decided Jan. 16, 2014.^**

David J. Reich, assigned counsel, for the appellant (respondent father).

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

Raymond F. Parlato, Danielson, for the minor children.

BEACH, KELLER and PELLEGRINO, Js.

KELLER, J.

The respondent father, Tyrone H., appeals from the judgments of the trial court, Hon. Francis J. Foley II, 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 Department of Children and Families (department) made reasonable 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 positive for the presence of marijuana, which Andrea admitted she used throughout her pregnancy. Andrea transferred guardianship of Kyara to the child's maternal 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 marijuana 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 incarcerated.

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 Jahein, 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 (commissioner), sought and obtained temporary custody of Kyara and Jahein due to their exposure to illegal substances, domestic violence and inadequate supervision in Andrea's home. Andrea and Jose participated in services resulting in the return of Kyara and Jahein in October, 2009, under an order of protective supervision.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 pregnancy.³ Andrea acknowledged to the department that she used marijuana and alcohol throughout this pregnancy 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 marijuana. 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 agitation, 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 alcoholic 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 Community 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 vehicle 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 commissioner “finally” sought and obtained an order of temporary 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 children'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 participate 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 privileges for thirty days, loss of recreation for fifteen days, and punitive segregation for seven days.... His arrest and conviction record ... indicates that [the respondent] 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 possession 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 transferred to his new girlfriend, Kimberly B., the same woman he recently assaulted. Midway through the termination 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 respondent'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...