In re Melody L.
Supreme Court
Released January 20, 2009 TERMINATION OF PARENTAL RIGHTS/ FAILURE TO REHABILITATE/
REASONABLE EFFORTS/ CHILDREN'S RIGHT OF APPEAL/ HEIGHTENED SCRUTINY:
In this complex termination
of parental rights appeal, the respondent mother appealed the trial
court's judgment of termination as to her five children, alleging
that the trial court (1) improperly found that DCF had made reasonable
efforts toward reunification; (2) erroneously determined that she
had failed to rehabilitate; and (3) violated her rights under the
state and federal constitution by terminating her parental rights.
Four of her children also filed appeals, challenging both the trial
court's judgment of termination and its subsequent denial of their
motion for visitation pending the outcome of the TPR appeal. The
Supreme Court affirmed the judgment of the trial court and dismissed
the children's visitation appeal as moot.
Respondent's Appeal
The respondent first alleged that the trial court's finding that
DCF had made reasonable efforts to reunify the family was clearly
erroneous in light of the department's failure to provide joint
or family therapy. The Court rejected this argument, listing the
"numerous services and programs" offered by the department to aid
in reunification and noting that evidence in the record belied the
mother's claim that the department had failed to offer family therapy.
The Court noted that DCF provided family therapy "where appropriate,"
and described one occasion where the respondent failed to attend
the first and only joint therapy session scheduled with her daughter.
Citing appellate case law, the court concluded that even if additional
family therapy were necessary, it would not have rendered the trial
court's decision clearly erroneous, since "reasonable efforts means
doing everything reasonable, not everything possible." (Emphasis
added.)
The Court also rejected the
respondent's claim that her compliance with the court-ordered specific
steps belied the trial court's finding that she had failed to rehabilitate.
The Court noted that though the mother participated in numerous
therapeutic services, the trial court's finding that she failed
to make adequate progress toward treatment goals, failed to consistently
submit to drug testing, and only secured part-time rather than full-time
employment, were not clearly erroneous. Citing In re Vincent D.,
65 Conn. App. 658, 670 (2001), the Court held that it is appropriate
for the trial court to go beyond the letter of the specific steps
and consider whether the parent has "corrected the factors that
led to the initial commitment." Although the record revealed that
the respondent was attached to her children, the Court held that
the trial testimony of the court-appointed evaluator supported the
finding that the respondent failed to accept responsibility for
the abuse of her children and lacked "the intellect and understanding
necessary to effect productive changes."
The Court summarily dismissed
the respondent's constitutional claims, noting that the claims had
not been raised at trial and that the respondent had failed to seek
review under State v. Golding, which permits appellate review of
unpreserved constitutional claims.
Children's Appeal
Turning to the children's appeal, the Supreme Court held (for the
first time) that a child has standing to appeal a trial court's
judgment of termination. Citing both Connecticut case law and a
decision out of Virginia, the Court concluded that "both the [parents]
and the children have a mutual interest in the perseveration of
family integrity, and the termination of parental status is irretrievably
destructive of that most fundamental family relationship."
The Court then turned to
the substantive issues raised by the appeal, including the children's
claim that (1) the trial court improperly admitted and relied on
expert testimony from Dr. Rogers; (2) the trial court erroneously
determined that termination was in the best interests of Melody
and Jaime; and (3) termination without a jury trial violated the
state constitutional rights of both the respondent and Neri Jasmin.
As to the first claim, the
children argued that the trial court's heavy reliance on the evaluator's
testimony and reports was improper, since he wasn't qualified as
an expert in sexual abuse trauma and didn't spend a sufficient period
of time with the family. In addition, the children alleged that
permitting the evaluator to testify as to the ultimate issue in
the case was a clear abuse of discretion. The Court rejected both
of these arguments, noting that the evaluator met with the family
on five separate occasions, and he never testified at trial about
issues specifically related to sexual abuse trauma. Moreover, the
Court agreed with DCF's position that the evaluator's expert opinion
testimony on the ultimate issue was permitted by § 7-3(a) of the
Connecticut Code of Evidence and that all parties had agreed to
allow the evaluator to make a finding regarding personal rehabilitation.
The Supreme Court also rejected
Melody and Jaime's argument that the trial court improperly concluded
that termination was in their best interests. The Court cited a
string of appellate case law in support of its position that termination
may still be in the best interests of a child even when a bond exists.
Finally, the Court summarily
dismissed the children's final two arguments-that termination of
parental rights without a jury trial violated Neri Jasmin's state
constitutional rights, and that the trial court failed to accurately
apply a best interests standard when ruling on the motion for visitation
pending the outcome of the termination appeal. On the state constitutional
issue, the Court dismissed the claim as improperly preserved. As
to the visitation issue, the court ruled that the outcome of the
termination appeal rendered the visitation appeal moot.
In an interesting and lengthy
concurrence, Justice Schaller urged the Court to adopt a higher
standard of review for termination of parental rights cases, given
the significant liberty interest involved. Justice Schaller reasoned
that due process "requires that a reviewing court examine the record
scrupulously to determine whether the trial court's termination
of parental rights is supported by substantial evidence." Under
this level of heightened review, already applied in criminal appellate
cases, Justice Schaller wrote that he would have reversed the trial
court's judgment of termination, noting that (1) DCF failed to make
reasonable efforts toward reunification in three important areas:
family therapy, visitation, and offering adequate support services
during the department's first attempt at reunification; (2) DCF
failed to establish by clear and convincing evidence that the respondent
was unable to benefit from additional services, in light of testimony
to the contrary by the GAL, the respondent's therapist, and several
other mental health care providers, as well as the respondent's
compliance with the court-ordered specific steps and the "exceptional
effort" she made "to obtain services to become a better parent";
and (3) termination was not in the best interests of the child,
based on a scrupulous review of the record and the testimony of
the children's GAL.
