Jessica B., In re

Page 997

718 A.2d 997

50 Conn.App. 554

In re JESSICA B. ^*

No. 17332.

Appellate Court of Connecticut.

Argued Feb. 27, 1998.

Decided Sept. 29, 1998.

Russell L. Case, Old Lyme, for appellant (respondent mother).

Jane R. Rosenberg, Assistant Attorney General, with whom, on the brief, were Richard Blumenthal, Attorney General, and Susan T. Pearlman and Linda Pearce Prestley, Assistant Attorneys General, for appellee (petitioner).

Dale H. King, Mystic, for minor child.

Before SCHALLER, FRANCIS X. HENNESSY and SULLIVAN, JJ.

FRANCIS X. HENNESSY, Judge.

The respondent mother (respondent) ¹ of Jessica B. appeals from the judgment of the trial court terminating her parental rights with respect to Jessica. The respondent claims that the trial court improperly (1) found that the evidence was sufficient to prove that the respondent failed to achieve rehabilitation and is unlikely to do so within a reasonable time, (2) found that the department of children and family services (department) made reasonable efforts to reunite the child with the respondent, (3) admitted, as party admissions, out-of-court statements made by the respondent, and (4) denied the respondent's motion for a mistrial. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. This matter came before the trial court by a petition filed by the department on January 18, 1996, requesting the termination of the parental rights of the respondent parents with respect to Jessica pursuant to General Statutes (Rev. to 1995) § 17a-112, as amended by Public Acts 1995, No. 95-238, § 3. ² The department alleged the following statutory grounds with respect to both parents: abandonment pursuant to § 17a-112 (b)(1), now § 17a-112 (c)(3)(A); failure to achieve rehabilitation pursuant to § 17a-112 (b)(2), now § 17a-112 (c)(3)(B); and no ongoing parent-child relationship pursuant to § 17a-112 (b)(4), now § 17a-112 (c)(3)(D). The department also alleged, in accordance with the statute, that each of these grounds for termination had existed for more than one year. See General Statutes (Rev. to 1995) ³ § 17a-112 (b), now § 17a-112 (c)(3).

Hearings were held before the trial court on various dates between October 8, 1996, and March 27, 1997, and the court found that the department had proven, by clear and convincing evidence, that the respondent had failed to achieve personal rehabilitation and that she was unlikely to do so within a reasonable time in the future as set forth in General Statutes (Rev. to 1995) § 17a-112 (b)(2), now § 17a-112 (c)(3)(B). The trial court then terminated the parental rights of the respondent finding that it was in the best interest of Jessica. It is from that judgment that the respondent takes this appeal. ⁴

Jessica was born on September 24, 1993, at the Backus Hospital in Norwich. After the child was delivered, the hospital staff obtained a ninety-six hour hold ⁵ on Jessica's custody. On September 28, 1993, the department requested and the court granted an ex parte order of temporary custody. At that time, the department also filed a petition alleging neglect. Jessica was placed in a foster home where she has remained continuously through the present.

On June 15, 1994, the trial court found the child to be neglected and committed her to the department for a period not to exceed eighteen months. ⁶ At that hearing, the trial court set the following expectations with respect to the respondent: "keep her whereabouts known to [the department] and her counsel, visit [Jessica] as often as the department permits, participate in individual counseling, obtain assessments and tests necessary for department of mental retardation services, secure and maintain adequate housing and income, refrain from substance abuse and involvement with the criminal justice system, and cooperate with services offered or referred to her by [the department] including patient aid services." A list of those expectations was signed by the respondent, her guardian ad litem, and her counsel. A year and one-half later, on January 18, 1996, the department filed termination petitions alleging, inter alia, that the respondent had failed to rehabilitate herself.

In its written memorandum of decision, the trial court found the following facts on which it relied. The respondent has a intelligence quotient of fifty-nine and is mildly to moderately mentally retarded. She has great difficulty reading and writing. Evaluations of the respondent were conducted by Bruce Freedman, an evaluator appointed by the court, between November 8, 1993, and April 30, 1996. Freedman, a licensed clinical psychologist, noted the following in his various evaluations of the respondent: the respondent is mentally retarded in the mild to moderate range; she has mental limitations that would affect her ability to manage both daily tasks and parenting skills; she shows poor judgment in men because she is unable to be without a man; each man she has chosen had appeared to be irresponsible, physically abusive, neglectful at times and has eventually abandoned her. Freedman concluded that "[o]n her own, [the respondent] would not have the common sense, intelligence and judgment to care for herself and her basic needs, or to provide for a growing child."

Freedman found, and the trial court agreed, that the only way in which the respondent could adequately care for Jessica would be if she established a permanent living arrangement with another adult who would serve as Jessica's primary caregiver. Freedman concluded, however, that the respondent's then spouse was not qualified to fill that role and, further, that the respondent would be unable to protect Jessica from him. During the trial, Freedman testified that the respondent's spouse is a "potentially dangerous individual" and that he displays signs of an antisocial personality disorder.

The standard of review for claims challenging the finding of a trial court in a juvenile proceeding is well established. "On appeal, our function is to determine whether the trial court's conclusion was legally correct and factually supported.... We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached ... or do we retry the case or pass upon the credibility of the witnesses.... Rather, on review by this court every reasonable presumption is made in favor of the trial court's ruling." (Citations omitted; internal quotation marks omitted.) In re Christina V., 38 Conn.App. 214, 220, 660 A.2d 863 (1995).

I

The respondent initially claims that the trial court improperly found that she had failed to achieve rehabilitation and that she is unlikely to do so within a reasonable time. ⁷ The respondent specifically challenges the trial court's conclusion arguing that it is not legally correct or factually supported by the record. We are not persuaded.

" 'Personal rehabilitation' as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent. The unamended statute sets no particular time limit as to when a parent must be able to assume again a responsible position in the life of his or her child. In re Juvenile Appeal (84-3), [181 Conn. 638, 640, 436 A.2d 290 (1980) ]. Nor does it require the parent to be able to assume full responsibility for a child, without the use of available support programs. Id." In re Migdalia M., 6 Conn.App. 194, 203, 504 A.2d 533, cert. denied, 199 Conn. 809, 508 A.2d 770 (1986).

The respondent challenges the trial court's finding that she failed to achieve rehabilitation because the following evidence presented at trial would support the opposite conclusion: (1) the respondent currently serves as the primary caretaker for one of her children; 2) the respondent and her husband have established a home in New Bedford, Massachusetts; (3) her mental retardation does not render her unable to provide Jessica with the necessary care because she is allegedly serving as the full-time primary caretaker for another child. ⁸

The trial court placed great weight on a series of facts that present a picture of the respondent far different from one based solely on the three facts on which she relies. First, the respondent's current living arrangements are not acceptable considering the housemates that would have access to Jessica. Her husband ⁹ was convicted of sexually abusing a six year old child in 1989 for which he served three years and for which he is currently on probation. A friend of the respondent and her husband lives on the third floor of the respondent's home. He was convicted of various burglaries and larcenies, reckless endangerment and one count of risk of injury to a child. The house in which they all live is equipped with an extensive electronic intercom system so that her husband and his friend can assist the respondent with the care of her other daughter, indicating that these two adults are the respondent's parental support system. As noted several times by the trial court, it is her choice of support system that undermines her ability to achieve rehabilitation.

Second, regarding the respondent's visitation with Jessica, for the first two years the respondent visited regularly. During the first two years of visitation, the trial court found that, during some of the visits, the respondent exhibited appropriate handling of Jessica. During other visits, however, her behavior reflected the "lack of judgment, common sense and parenting skills to which Freedman referred in his evaluations." ¹⁰ It is also important to note that from May, 1995, until the end of October, 1995, she failed to visit Jessica at all. ¹¹

Third, regarding social services, the department sent the respondent and her husband information regarding social services available in New Bedford, Massachusetts. In October, 1994, the respondent requested that the department initiate an...