In re Kaitlyn A.

Connecticut Appellate Court

118 Conn. App. 14 (2009)

November 10, 2009

UNSUCCESSFUL APPEAL OF TERMINATION OF PARENTAL RIGHTS

In this unsuccessful appeal of a termination of parental rights, the respondent mother raised two issues. First – she claimed that the trial court erred by not allowing her a continuance for the appointment of new counsel despite her inability to communicate with her existing counsel. Second – she claimed that the court improperly found that she failed to achieve a sufficient degree of personal rehabilitation pursuant to Conn. Gen. Stat. § 17a-112(j)(3)(B)(ii).

The respondent mother had a long history of substance abuse and involvement with the Department of Children and Families (“Department”), culminating in a March 2006 filing of a neglect petition in the Superior Court. On May 11, 2006, the Department invoked a 96 hour hold on behalf of Kaitlyn and removed her from the respondent mother’s home that day. The Court adjudicated Kaitlyn neglected and committed her to the care and custody of the Department on November 29, 2006. The Department subsequently filed the petition to terminate the mother’s parental rights on April 30, 2007. During the pendancy of the termination trial that began in May 2008, the respondent mother was incarcerated as a result of her conviction for a violation of probation. The court terminated her parental rights in August 2008.

On appeal, the respondent’s first claim was that the court abused its discretion when it denied her request for appointment of new counsel at the commencement of the TPR trial in light of her advising the court that she could no longer communicate with her court appointment legal counsel. Upon review of the trial court’s actions regarding this claim, the appellate court addressed the following concerns. First, the court addressed the respondent mother’s claim that her attorney at the trial failed to subpoena certain witnesses for the TPR trial – and as a result the trial court’s failure to allow her new counsel at trial constituted abuse of discretion. Citing the fact that a letter to the trial court on the eve of the TPR trial constituted the “first instance in the nineteen months that [respondent’s counsel] represented the respondent that she made any indication to the court that she had problems with him, his strategy or the sufficiency of his representation of her in the matter,” the Appellate Court found that the record supported supported the conclusion that the disagreements were strategy related and that the disagreement did not rise to the level of a conflict between counsel and client as to cause an irretrievable breakdown in communication. In addition – the court dismissed the respondent’s contention that her lack of opportunity to read the court-ordered assessment contributed to the lack of communication and accord on strategy.

The second claim on appeal – namely that the termination order was not factually and legally supported by the record was rejected as well. Specifically, the respondent mother argued that she had achieved a sufficient degree of personal rehabilitation pursuant to the TPR statute – and that there was no evidence to support a finding that she was incapable of caring for her child’s needs. The court cited the respondent’s failure to comply with the specific steps to take toward reunification with her child from the date the child was adjudicated neglected. Her repeated failure to participate in and comply with drug treatment and counseling, as well as her continued involvement with the criminal justice system (e.g. failing to report to probation officer sixteen times, two positive tests for cocaine, leaving the state without her probation officer’s permission) constituted overwhelming evidence of failure to rehabilitate. That, combined with her incarceration during the TPR trial and her homelessness prior to the incarceration, provided ample support for failure to rehabilitate.

The case may be found on the state Judicial Branch website by going towww.jud.ct.gov/external/supapp/Cases/AROap/AP118/118AP31.pdf

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