In re Jason R.

Connecticut Appellate Court

June, 2011

Did the Court Shift the Burden of Proof to the Respondent? Split Decision

Background
In 2007, DCF sought, and was denied, temporary custody of Jason R. and Fernando R. In January, 2008, believing that the children were in imminent risk of physical harm, DCF removed the children from the home; they have been in DCF’s custody ever since. In April of that year, the mother pled no contest and the court adjudicated the children neglected and committed them to DCF. The children are currently in a pre-adoptive placement.

Prior to and after removal, DCF provided the mother with services, including mental health, substance abuse counseling, parenting education, and housing assistance. A series of DCF social workers and outside service providers (funded by DCF) worked with her to reunite the family. Following a report from the court-ordered psychological evaluation (conducted by Dr. Green), the mother completed an intensive outpatient program at the Rushford Center. From October 2008 – December 2009, mother tested positive for marijuana on 5 of 20 occasions. Mother attended Family Matters, a center for child visitation and parental counseling in April and May of 2009. Family Matter recommended DCF follow steps to transition the children home and noted mother’s significant progress.

In June, 2009, DCF filed petitions to terminate both parents’ parental rights (TPR). Mother continued to receive services from DCF, including participation in Community Resources, a program which fosters reunification and preservation. It was noted during the Community Resources visits that mother had difficulty disciplining the children and they were much better behaved with the foster mother. DCF provided the mother with a security deposit on an apartment, but she was evicted for nonpayment of rent.

On July 8, 2010, the trial court granted DCF’s TPR petition. The court found DCF made reasonable efforts toward reunification, and that the mother had not made significant progress in meeting the objectives identified by Dr. Green. The court also found that her continued drug use and self-medication raised questions about her ability to care for the children. The mother made a motion for reconsideration, contending that the trial court improperly shifted the burden of proof to the respondent mother on the issue of personal rehabilitation.

Holding
(1) The trial court did not err by improperly shifting the burden of proof on the issue of personal rehabilitation to the mother. The judge’s memorandum does not imply, necessarily, that the court shifted the burden of proof on the issue of personal rehabilitation to the mother, or that she had to produce evidence in addition to that already in the record. Rather, the court expressed its finding that the evidence presented and already in the record demonstrated that the respondent had made progress, but “had not made significant progress to persuade the court by clear and convincing evidence that she had met the objectives identified by Dr. Green as important for reunification.” Viewing the decision in its entirety, it is clear that the court required DCF to prove its case by clear and convincing evidence on both grounds (failure to rehabilitate and best interests of the children).

(2) The trial court did not err in concluding that DCF had made reasonable efforts to reunify the mother and children. The record supports the trial court’s conclusion that the mother was offered and the department provided services dealing with mental health, substance abuse, parenting and housing issues. The department’s employ of Family Matters to implement Dr. Green’s recommendations was reasonable; the fact that the department did not provide the mother with access to the specific program suggested by Dr. Green, due to the long waiting list, does not vitiate the trial court’s finding that the department had made a reasonable effort to reunify the mother and her children. Failure to provide a psychological evaluation to determine if the mother had ADHD does not mean, necessarily, that the court’s finding that the department made reasonable efforts was clearly erroneous. The delay in this evaluation was due, in part, to the mother’s lack of engagement with DCF.

(3) The court did not err in finding that the mother failed to achieve personal rehabilitation. The record indicated that at the time of the trial, the mother continued to have difficulties with parenting the children, with her suggested medication regimen and management, and her marijuana use. While the record suggests that the mother made some progress, the critical issue was “whether she has gained the ability to care for the particular needs of the child at issue.” In re Shyliesh H., 56 Conn. App. 167, 180 (1999). The trial court relied heavily on Dr. Green’s opinion, who concluded that she needed to address her own mental health before she could be expected to care for the children.

Dissent
(Robinson, J.) The dissent would reverse judgment and order a new trial because the trial court improperly shifted the burden of proof to the mother on the issue of personal rehabilitation. Since the fulfillment of the objectives identified by Dr. Green was “essential to determining whether [the mother] had achieved a sufficient degree of rehabilitation,” for reunification, it was incumbent that DCF demonstrate that the mother had failed to meet the objectives. By requiring the mother to demonstrate she has met Dr. Green’s objectives, the court put the burden on the mother to demonstrate she has achieved a sufficient degree of rehabilitation. This is improper because DCF bears the burden of proof on the issue of personal rehabilitation.

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