In re Walker C.

195 Conn.App. 604

226 A.3d 175

IN RE WALKER C. III^*

AC 43068

Appellate Court of Connecticut.

Argued December 11, 2019

Officially released February 6, 2020^**

Joshua Michtom, assistant public defender, for the appellant (respondent mother).

Stephen G. Vitelli, assistant attorney general, with whom, on the brief, were William Tong, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).

Judith C. Dayner, for the minor child.

Lavine, Devlin and Bear, Js.

BEAR, J.

The respondent mother appeals from the judgment of the trial court terminating her parental rights with respect to her minor child, Walker C. III (child). In the termination of parental rights petition, the petitioner, the Commissioner of Children and Families (commissioner), alleged that the respondent had failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, she could assume a responsible position in the life of the child pursuant to General Statutes § 17a-112 (j) (3) (B) (i).¹ On appeal, the respondent claims that (1) the court's finding that the child's attorney argued in favor of the termination of the respondent's parental rights is clearly erroneous, (2) the court's error was not harmless because there was insufficient evidence tending to support termination of parental rights over permanent transfer of guardianship, and (3) there was considerable evidence tending to show that a permanent transfer of guardianship was in the child's best interest.² We affirm the judgment of the trial court.

The trial court found the following facts by clear and convincing evidence. The respondent is the mother of the child and one other child, an older female half-sibling (daughter). The respondent has been involved with the Department of Children and Families (department) since 2009.³ Since that time, she continuously has denied that she has alcohol and substance abuse problems, despite several mandated reporters having informed the department that they had observed her to be intoxicated while in the presence of one or both children and while driving with them in her vehicle, thus demonstrating unsafe and otherwise inadequate supervision of her children. More specifically, on February 12, 2015, a report was made stating that the respondent arrived at her daughter's school smelling of alcohol and marijuana. A few months later, on June 3, 2015, the Hartford Police Department investigated the respondent's allegation that her daughter's father was sexually abusing the daughter, and the officer who investigated the allegation observed that the respondent appeared to have been intoxicated. On May 31, 2016, employees from the daughter's school reported that the respondent was intoxicated, and that the child's diaper was leaking and filthy.⁴ Again, a few months later, on September 16, 2016, the respondent arrived at the daughter's school in an intoxicated condition, reportedly slurring her words. School personnel observed that she had urinated on herself, and had left her car running while the child was hanging out of the window. The respondent, as a result, was arrested for risk of injury to a child and breach of the peace.

The respondent was arrested for a second time on May 11, 2017, after she left the scene of a motor vehicle crash. The police report stated that she "reeked" of alcohol, could barely stand up, and that one of her children was in the back seat of her vehicle. Additionally, she failed a field sobriety test.⁵

Approximately one year later, the Hartford Police Department executed a search warrant on the respondent's home for evidence that the respondent father was a dealer of crack cocaine and marijuana, both of which were found in the home along with $3510 in cash and a Beretta 950BS .25 caliber semiautomatic pistol. The respondent father was arrested in connection with the incident, but the respondent was not. That same day, the department visited the respondent's home and reported that not only did she appear to be under the influence of alcohol, but she also did not disclose the earlier search of her home or the arrest of the respondent father.

Since its first contact with her in 2009, the department sought multiple times to engage the respondent in services aimed at treating her alcohol abuse and dependence and other issues. The respondent was referred to, among other things, group sessions at the Wheeler Clinic, parenting services at Radiance Innovative Services, therapy at the Community Renewal Team Behavioral Health Program, and therapy at My People's Clinical Services. The department received several reports from service providers that the respondent failed to understand how her alcohol abuse and behavior affected her and the safety of her children. The respondent missed or avoided many of the scheduled sessions. For example, over the course of one of her treatment programs, the respondent was scheduled to submit forty-five random urine screenings, but she completed only thirteen of them.

The following procedural history is relevant to the present appeal. On September 19, 2016, the commissioner filed a neglect petition on behalf of the child. On September 22, 2016, the commissioner sought an ex parte order of temporary custody of the child, which was granted. That order was sustained on October 7, 2016, after a hearing. On February 8, 2017, the court found the child neglected, and returned the child to the care of the respondent under an order of protective supervision. The court issued specific steps for the respondent on February 8, 2017, including an order that she not consume alcohol or have alcohol in her home.

On May 16, 2017, the commissioner filed a second motion for temporary custody, which was granted and then sustained on May 26, 2017. The court modified the disposition from protective supervision to commitment. The court ordered new specific steps for the respondent. On September 14, 2017, the court adjudicated the child neglected. On June 7, 2018, the petitioner filed a petition for termination of the respondent's parental rights with respect to the child on the ground of her failure to rehabilitate as set forth in § 17a-112 (j) (3) (B) (i). The petitioner sought to be appointed statutory parent for the child after termination occurred. The petitioner did not check the box on the petition seeking an appointment as guardian of the person of the child. Therefore, the petitioner's sole prayer for relief in its petition was that the court terminate the parental rights of the respondent and appoint a statutory parent for the child.

On December 3, 2018, the trial commenced and concluded. On December 7, 2018, the respondent filed a motion to open the evidence to present testimony from an additional witness, which was granted by the court on December 20, 2018. On January 17, 2019, the respondent presented additional evidence, followed by closing argument. On January 31, 2019, pursuant to a request from the attorney for the child, the court heard testimony from a department worker, admitted into evidence a report relating to the position of the foster mother concerning a disposition of permanent transfer of guardianship of the child instead of the termination of the respondent's parental rights, and heard further arguments by the parties.

On March 20, 2019, the court issued its memorandum of decision. It concluded that the department had proved, by clear and convincing evidence, the ground for termination set forth in § 17a-112 (j) (3) (B) (i), that the respondent had failed to rehabilitate to such a level that would avoid the application of the statute to her, that her conduct was unlikely to change within a period sufficient to have the child safely returned to her and, that after consideration of the seven factors set forth in § 17a-112 (k), it was in the child's best interest for the court to terminate the respondent's parental rights. This appeal followed. Additional facts will be set forth as necessary.

I

The respondent claims that (1) the trial court's memorandum of decision contains a clearly erroneous finding that the child's attorney argued in favor of the termination of parental rights, and (2) that finding was not harmless.

"The standard for termination of parental rights in a child is well known. A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. ... In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights [under § 17a-112 (j) (3) ] exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase ... [in which] the trial court determines whether termination is in the best interests of the child." (Internal quotation marks omitted.) In re Quamaine K. , 164 Conn. App. 775, 782, 137 A.3d 951, cert. denied, 321 Conn. 919, 136 A.3d 1276 (2016). On appeal, with respect to the dispositional phase, "we will overturn the trial court's decision that the termination of parental rights is in the best interest of the [child] only if the court's findings are clearly erroneous." (Emphasis added.) In re Athena C. , 181 Conn. App. 803, 811, 186 A.3d 1198, cert. denied, 329 Conn. 911, 186 A.3d 14 (2018).

With respect to the harmless error analysis, our Supreme Court has held "that not every error is harmful. ... [B]efore a party is entitled to a new trial ... he or she has the burden of demonstrating that the error was harmful." PSE Consulting, Inc. v. Frank Mercede & Sons, Inc. , 267 Conn. 279, 295, 838 A.2d 135 (2004). "[T]he question is whether the trial court's error was so prejudicial as to deprive the [respondent] of a fair trial, or, stated another way, was the court's [finding], though erroneous, likely to affect the result?" (Internal quotation marks omitted.) State v. Ramirez , 101...