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IN RE KYLIK A. ET AL.*

(AC 36721)

DiPentima, C. J., and Prescott and Bear, Js.

Argued September 8—officially released October 16, 2014**

(Appeal from Superior Court, judicial district of

Middlesex, Child Protection Session, Rubinow, J.)

David J. Reich, for the appellant (respondent

mother).

Frank LaMonaca, assistant attorney general, with

whom, on the brief, were George Jepsen, attorney general, and Benjamin Zivyon, assistant attorney general,

for the appellee (petitioner).
Opinion

BEAR, J. The respondent mother, Denice S., appeals

from the judgments of the trial court rendered in favor

of the petitioner, the Commissioner of Children and

Families, terminating her parental rights as to two of

her children,1 Kylik A. and Avion A.2 On appeal, the

respondent claims that the court improperly found that

the Department of Children and Families (department)

made reasonable efforts to reunify her with the children, and that she was unable and unwilling to benefit

from the reunification efforts.3 We affirm the judgments

of the court.

The following facts, which were found by the court,

and procedural history are relevant to our review. The

respondent’s involvement with the department began

when she was a child, and she spent two years in foster

care due to maternal abuse. The respondent suffered

additional childhood trauma through abuse in herfoster

home, sexual abuse, the death of a close relative, and

bullying at school, and she exhibited behavioral problems in middle school and high school. She suffered

from depression as a teenager and received medication.

She attended school through the twelfth grade, but did

not graduate. Michael A., the children’s father, and the

respondent met while she was in high school and married in March, 2007. Although the two remain legally

married, the respondent was abused physically and verbally by Michael A., and the two separated after the

family came to the department’s attention in late 2008.

The respondent has not had custody of the children

since her separation from Michael A., a period of

approximately six years as of the date of this opinion.

On January 6, 2009, the petitioner imposed a ninetysix hour hold4 on the children, removing them from

Michael A.’s physical custody and placing them in nonrelative foster care. On January 9, 2009, the court

granted the petitioner’s ex parte motions for orders of

temporary custody, which alleged that the children

were endangered when the respondent assaulted

Michael A.’s girlfriend in front of them. The petitioner

filed neglect petitions for the children that same day,

alleging that the respondent had an unstable housing

history, that she had anger and parenting issues, and

that Michael A. had persistent marijuana abuse issues,

parenting deficits, and that he needed counseling services. The court, on January 15, 2009, the scheduled

hearing date, sustained the ex parte orders of temporary

custody with the agreement of each of the respondents,

and the children remained in the custody of the petitioner. On May 8, 2009, the court adjudicated the children uncared for and ordered their commitment to the

petitioner. The court, on April 20, 2010, modified this

disposition, and placed the children with Michael A.

under six months of protective supervision, which was

terminated on September 16, 2010.
The department, beginning in 2009, provided a number of services, and referrals for services, to the respondent. In 2009, the respondent was involved in a

substance abuse treatment program. On June 7, 2010,

the respondent started individual counseling and substance abuse treatment at Southwest Community

Health Center (SCHC). She was diagnosed with

depressive disorder, and she was determined to be

unable to cope with her multiple life stressors. After

SCHC’s psychiatric and psychosocial assessments, the

respondent refused to try the recommended medication, claiming to prefer counseling, yet she only sporadically attended subsequent scheduled therapy sessions.

In July, 2010, the department referred her to anger management treatment at Connecticut Renaissance. She did

not complete the program, however, and was discharged in August, 2010, for nonattendance. SCHC, on

March 30, 2011, discharged the respondent because of

her failure to progress, and her noncompliance with its

requirements and recommendations.

The petitioner imposed a second ninety-six hour hold

on the children on December 18, 2010, when Michael

A. was arrested for domestic violence against his girlfriend. On December 22, 2010, the court granted the

petitioner’s ex parte motions for orders of custody, and

the children were placed with their paternal aunt. The

petitioner filed a second set of neglect petitions that

day, alleging that Michael A. had been abusive to the

children and that the respondent had not maintained

a relationship with the children for six months. On

December 30, 2010, the scheduled hearing date, Michael

A. agreed to the new ex parte orders of temporary

custody. On January 7, 2011, the respondent similarly

agreed, the ex parte orders of temporary custody were

sustained, and the court ordered specific steps for each

of the parents to regain custody of the children.

The department, during 2011, continued to provide

the respondent with services and referrals for services.

On March 7, 2011, Child Guidance’s Reconnecting Families program (RCF) began providing the respondent

with one supervised and one therapeutically supervised

home visit with the children each week, parenting training with modeling of positive interaction and nurturance for the children, help in meeting the children’s

medical and practical needs, education in anger management, impulse control, domestic violence prevention, and the negative impact of aggression upon

children. RCF assisted the respondent in obtaining

employment and adequate housing. The respondent,

however, maintained uneven contact with RCF during

the spring of 2011, making little progress in developing

parenting skills, anger management, or self-sufficiency.

This lack of progress was evident on March 30, 2011,

when the respondent and her neighbor engaged in a

physical altercation very near the respondent’s room,
in which the RCF worker and the children were present

to celebrate Kylik’s birthday. The respondent returned

to her room with scratches and ripped clothing after

loud arguing, banging, and thudding sounds were heard.

The children became nervous and were removed from

the situation. The respondent was discharged from RCF

on June 29, 2011, for failure to progress when she cancelled the visit scheduled for that day.

In April, 2011, the department gave the respondent

money for a security deposit on a one bedroom apartment. The department again referred the respondent to

SCHC, but she did not take advantage of the behavioral

health services available at that time. It was not until

July 6, 2011, that the respondent began treatment at

SCHC again. The respondent began SCHC’s anger management program, and was diagnosed with generalized

anxiety and alcohol abuse. On July 26, 2011, a psychologist conducted a psychological evaluation of the respondent and interactional evaluation with the children. The

respondent denied having substance abuse problems,

despite testing positive for marijuana. She admitted previous daily marijuana use, but claimed not to have

smoked ‘‘for a while now.’’ She reported symptoms of

anxiety, including panic attacks, but claimed to have

missed treatment sessions because of ‘‘issues with child

care.’’ The psychologist found that the respondent had

borderline range intelligence and a lower than average

ability to sustain her attention or exert mental control.

Her interactions with the children were positive and

she remained calm despite their active behavior. She

did not appropriately respond and intervene, however,

when the children engaged in potentially dangerous

conduct. The psychologist found that the respondent

needed to complete substance abuse and domestic violence treatment, and to undergo individual therapy for

her mental health issues.

OnAugust 9, 2011, while still enrolled in SCHC’s anger

management program, the respondent was admitted to

SCHC’s alcohol abuse treatment program. On August

31, 2011, however, the respondent was discharged for

sporadic attendance and lack of participation. Similarly,

on September 13, 2011, the respondent was discharged

from SCHC’s anger management program for noncompliance, after missing three sessions and appearing at

a morning session highly intoxicated.

In November, 2011, the department referred the

respondent to Recovery Management Services for substance abuse services, and to Project Courage for drug

treatment and mental health counseling. The respondent began treatment with Project Courage that month.

On December 1, 2011, the court adjudicated each of

the children neglected for a second time, ordered the

children committed to the custody and guardianship of

the petitioner, and ordered additional specific steps

supplementing the earlier set. As part of the specific
steps, the court ordered the department to notify the

respondent’s attorney when the respondent did not

comply with any specific step.

The department, during 2012, continued to provide

the respondent with services and referrals for services.

After testing negative for alcohol and drug use on January 18, 2012, the respondent was provided with group

and individual therapy services, as well as domestic

violence, trauma, and parenting services. The department also referred the respondent to a Supportive Housing program in January, 2012, and informed her of

counseling available at the Centerfor Women and Families (CWF).

On May 30 and 31, 2012, approximately three months

after the petitioner filed her petitions to terminate

parental rights, a psychologist performed a psychological evaluation of the respondent and an evaluation of

her interaction with the children. The respondent presented with post-traumatic stress disorder and

depressive disorder, and she admitted that she was still

using alcohol and marijuana ‘‘to cope with stress,’’ and

to ‘‘self-medicate emotional hardship.’’ The psychologist found that despite years of supportive services, the

respondent still faced difficulties with stress management, employment, and housing. The respondent was

appropriately affectionate during the interactional evaluation, and she showed an adequate ability to manage

the children in a highly structured environment. She

denied parenting problems, however, while simultaneously acknowledging that she gave in to the children’s

demands, and ‘‘that her use of marijuana and alcohol to

cope with depression reflected poor decision making.’’

In August, 2012, the respondent tested negative for

all substances. Additionally, in October, 2012, approximately six months after the petitionerfiled her petitions

to terminate parental rights, the respondent started

counseling with CWF to address her relationship issues

and showed improvement in personal stability with

CWF through February, 2013. This positive development occurred, however, approximately four years after

the respondent had voluntarily relinquished physical

custody of the children when she separated from

Michael A.

In November, 2012, Supportive Housing provided the

respondent with a three bedroom apartment, but as of

August, 2013, it, instead of the respondent, was still

paying the rent and utility bills. The respondent briefly

worked at a restaurant after the petitioner’s referral of

her to employment training, but she has had no other

employment.

In addition to these services, the department also

provided the respondent supervised visits with the children. After the birth of the respondent’s third child, D,

in May, 2010, the respondent would often bring him to
the visits. Although her parenting improved between

January 24 and September 9, 2011, the respondent displayed difficulty paying adequate attention to D while

trying to meet the needs of the children. The respondent

missed approximately one visit per month during this

period. To reduce the children’s distress because of the

respondent’s failure to attend visits, the department

reduced the frequency of visits in September, 2011.

The respondent, however, still failed to visit regularly,

missing at least one and sometimes two visits per

month.

In January, 2012, the department referred the respondent to the ExchangeClub for weekly therapeutic visitation and parenting education. The respondent was

taught age appropriate activities forthe children, necessary safety, structure, and routine, and discipline and

behavior management. Although the Exchange Club

worked with the respondent for more than one year,

she made limited progress, and she cancelled the visits

scheduled for July 10, August 14, September 18, October

9, 16 and 23, November 6, and December 18, 2012, in

addition to the visits scheduled for January 15 and 22,

and February 5, 2013.

The department, during 2013, continued to provide

the respondent with services and referrals for services.

In March, 2013, the department moved the children’s

visits to Sunday to accommodate the respondent’s restaurant work schedule, but when she left that job, she

provided other excuses for her absences from half the

scheduled visits. The respondent cancelled visits with

the children planned for March 5 and 12, April 2 and

14, May 5, 19 and 23, and June 1 and 23, 2013. The

children were out of the state from July 5 to August 7,

2013, but the respondent still did not attend two of the

visits available prior to the start of the termination of

parental rights trial.

The petitioner, on March 1, 2012, filed petitions to

terminate the parental rights of Michael A. and the

respondent. The combined termination of parental

rights trials occurred on September 4 and 5, 2013, and

the court then heard closing arguments on November

27, 2013. In its memorandum of decision filed March

18, 2014, the court found, pursuant to General Statutes

§ 17a-112 (j) (1), that clear and convincing evidence

established both that the department had made reasonable reunification efforts for the benefit of the respondent and that the respondent was unable or unwilling

to benefit from these efforts.5 The court also found that

clear and convincing evidence established that termination of parentalrights was in the children’s best interest,

as required by § 17a-112 (j) (2). Finally, the court found,

by clear and convincing evidence, that the respondent

had failed to achieve sufficient personal rehabilitation

and that she had no ongoing parent-child relationship

with the children, within the meaning of § 17a-112 (j)
(3) (B) (i) and (D). See footnote 3 of this opinion. The

court granted the petitions and terminated the respondent’s parental rights as to the children.6 This appeal

followed.

We first set forth the relevant standard of review

and the legal principles that inform our analysis. ‘‘Our

standard of review on appeal from a termination of

parental rights is whether the challenged findings are

clearly erroneous. . . . The determinations reached by

the trial court that the evidence is clear and convincing

will be disturbed only if [any challenged] finding is

not supported by the evidence and [is], in light of the

evidence in the whole record, clearly erroneous. . . .

‘‘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 . . . nor 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. . . .

‘‘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 fortermination of parental rights [under § 17a-112 (j)] 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 the dispositional

phase, the trial court determines whether termination

is in the best interests of the child.’’ (Internal quotation

marks omitted.) In re Anvahnay S., 128 Conn. App.

186, 190, 16 A.3d 1244 (2011). With these principles in

mind, we turn to the respondent’s claims.

The respondent claims that the court improperly

found that the department made reasonable efforts to

reunify her with the children and that she was unable

or unwilling to benefit from the reunification efforts.

She argues that both findings were clearly erroneous

because the department failed to comply with the courtordered specific steps by not notifying the respondent’s

attorney when she did not comply with reunification

services. She further argues, with respect to the finding

that the department made reasonable efforts, that the

court improperly considered reunification efforts only

through the date that the petitioner filed the petitions

for termination of parental rights rather than the date

on which the court approved the permanency plan other

than reunification. We disagree.

Section 17a-112 (j) provides in relevant part: ‘‘The

Superior Court . . . may grant a petition [to terminate

parental rights] . . . if it finds by clear and convincing

evidence that(1)the [department] has made reasonable
efforts to locate the parent and to reunify the child with

the parent in accordance with subsection (a) of section

17a-111b, unless the court finds in this proceeding that

the parent is unable or unwilling to benefit from reunification efforts . . . .’’ (Emphasis added.) ‘‘Thus, the

department must prove [by clear and convincing evidence] either that it has made reasonable efforts to

reunify or, alternatively, that the parent is unwilling or

unable to benefit from reunification efforts. Section

17a-112 (j) clearly provides that the department is not

required to prove both circumstances. Rather, either

showing is sufficient to satisfy this statutory element.’’

(Emphasis in original; internal quotation marks omitted.) In re Anvahnay S., supra, 128 Conn. App. 191.

‘‘[I]n determining whether the department has made

reasonable efforts to reunify a parent and a child or

whether there is sufficient evidence that a parent is

unable or unwilling to benefit from reunification efforts,

the court is required in the adjudicatory phase to make

its assessment on the basis of events preceding the date

on which the termination petition was filed. . . . This

court has consistently held that the court, [w]hen making its reasonable efforts determination . . . is limited

to considering only those facts preceding the filing of

the termination petition or the most recent amendment

to the petition . . . .’’ (Citations omitted; internal quotation marks omitted.) In re Kyara H., 147 Conn. App.

855, 870–71, 83 A.3d 1264, cert. denied, 311 Conn. 923,

86 A.3d 468 (2014).7

A careful review of the record reveals that there was

clear and convincing evidence to support the court’s

finding that the respondent was unable or willing to

benefit from the department’s reunification efforts. The

respondent was offered numerous services to aid in

attaining reunification, including substance abuse and

alcohol treatment, anger management treatment, individual and group counseling, mental health treatment,

assistance with employment and housing, financial

assistance, parenting education, and supervised and

therapeutically supervised visitation. The respondent,

however, continually remained unable or unwilling to

participate in or to benefit from the services provided,

evidenced by her repeated discharges from programs

due to noncompliance, nonattendance, and lack of participation, frequent cancellations of scheduled visits,

and limited progress despite years of receiving services

in programs that she attended. The evidence before the

court, thoroughly discussed in its lengthy and detailed

memorandum of decision, more than adequately supported its determination that the respondent, as of

March 1, 2012, the date the termination of parental

rights petitions were filed, was unable or unwilling to

benefit from the department’s reunification efforts. We,

accordingly, conclude that the court’s finding was not

clearly erroneous. Because we conclude that the court

properly found, on the basis of clear and convincing
evidence, that the respondent was unable or unwilling

to benefitfrom reunification efforts, we do notreach the

respondent’s claim that the court improperly concluded

that the department made reasonable efforts to reunify

her and the children.

With respect to the respondent’s assertion that the

department failed to comply with the court-ordered

specific steps by not notifying the respondent’s attorney

when she did not comply with reunification services,

except for a department social worker’s testimony relating to one issue that the respondent had during her

participation in the Exchange Club program in 2012,

we were unable to find any evidence in the record to

support this assertion.8 The respondent did not mention

this claim in her closing argument to the court, or thereafter.9 The court was not put on notice that the respondent relied on it, and did not make any findings in

that regard.

In summary, after a carefulreview ofthe respondent’s

briefs and the record, we conclude that the respondent

did not prove clear error by the court in its finding that

the respondent was unable or unwilling to benefit from

reunification efforts, which were provided to her over

several years prior to March 1, 2012. Accordingly, the

trial court did not err in terminating the respondent’s

parental rights.

The judgments are affirmed.

In this opinion the other judges concurred.

* In accordance with the spirit and intent of General Statutes § 46b-142

(b) and Practice Book § 79a-12, the names of the parties involved in this

appeal are not disclosed. The records and papers of this case shall be open

for inspection only to persons having a proper interest therein and upon

order of the Appellate Court.

** October 16, 2014, the date that this decision was released as a slip

opinion, is the operative date for all substantive and procedural purposes.

1 The respondent has another child, D, to whom she gave birth in May,

2010. That child, however, is not a party to these proceedings. Therefore,

we refer to Kylik A. and Avion A. as the children in this opinion.

2 Michael A. is the father of both Kylik A. and Avion A., and was a party

in the termination proceeding. He did not appeal from the decision of the

court terminating his parental rights. Accordingly, we refer to Denice S. as

the respondent.

3

In her brief, the respondent also claims that the court applied an improper

standard in determining that she had no ongoing parent-child relationship

with the children. See General Statutes § 17a-112 (j) (3) (D). Under § 17a112 (j), the court may grant a petition to terminate parental rights if the

petitioner proves three elements, by clear and convincing evidence. To

satisfy the third element of the statute, the petitioner must prove at least

one of the grounds for termination enumerated in § 17a-112 (j) (3), by clear

and convincing evidence. In its memorandum of decision, the court found

both that the respondent had failed to achieve sufficient personal rehabilitation and that she had no ongoing parent-child relationship with the children,

within the meaning of § 17a-112 (j) (3) (B) (i) and (D). The respondent

does not challenge on appeal the court’s finding that she failed to achieve

sufficient personal rehabilitation, a finding that provides an independent

alternative basis for upholding the court’s determination that the requirements of § 17a-112 (j) (3) had been satisfied. We, therefore, do not reach

the respondent’s claim that the court applied an improper standard in

determining that she had no ongoing parent-child relationship with the

children. See In re Daniel A., 150 Conn. App. 78, 98, 89 A.3d 1040 (only one

of statutory grounds for termination of parental rights need be proved
by clear and convincing evidence), cert. denied, 312 Conn. 911, 93 A.3d

593 (2014).

4 General Statutes § 17a-101g provides in relevant part: ‘‘(e) If the Commissioner of Children and Families, or the commissioner’s designee, has probable cause to believe that the child or any other child in the household is in

imminent risk of physical harm from the child’s surroundings and that

immediate removal from such surroundings is necessary to ensure the child’s

safety, the commissioner, or the commissioner’s designee, shall authorize

any employee of the department or any law enforcement officer to remove

the child and any other child similarly situated from such surroundings

without the consent of the child’s parent or guardian. The commissioner

shall record in writing the reasons for such removal and include such record

with the report of the investigation conducted under subsection (b) of

this section.

‘‘(f) The removal of a child pursuant to subsection (e) of this section

shall not exceed ninety-six hours. During the period of such removal, the

commissioner, or the commissioner’s designee, shall provide the child with

all necessary care, including medical care, which may include an examination by a physician or mental health professional with or without the consent

of the child’s parents, guardian or other person responsible for the child’s

care, provided reasonable attempts have been made to obtain consent of

the child’s parents or guardian or other person responsible for the care of

such child. During the course of a medical examination, a physician may

perform diagnostic tests and procedures necessary for the detection of child

abuse or neglect. If the child is not returned home within such ninetysix-hour period, with or without protective services, the department shall

proceed in accordance with section 46b-129. . . .’’

5 A finding of either of these grounds is sufficient to satisfy the requirements of § 17a-112 (j) (1). In re Jorden R., 293 Conn. 539, 556, 979 A.2d 469

(2009) (‘‘either finding, standing alone, provides an independent basis for

satisfying § 17a-112 [j] [1]’’).

6 The respondent does not challenge on appeal the court’s findings that

she failed to achieve sufficient personal rehabilitation and that it was in the

best interest of each of the children for her parental rights to be terminated.

Therefore, the only issue on appeal to be considered is the § 17a-112 (j) (1)

claim of the respondent.

7 Practice Book § 35a-7 (a) provides: ‘‘In the adjudicatory phase, the judicial authority is limited to evidence of events preceding the filing of the

petition or the latest amendment, except where the judicial authority must

consider subsequent events as part of its determination as to the existence

of a ground for termination of parental rights.’’

Thus, although the court was limited to matters occurring prior to March

1, 2012, to determine, pursuant to § 17a-112 (j) (1), whether the department

had made reasonable efforts to reunify, or that the respondent was unable

or willing to benefit from those reunification efforts, the court could consider

matters occurring after the March 1, 2012 filing of the termination of parental

rights petitions when it was considering the issue pursuant to § 17a-112 (j)

(3) (B) (i) of whether the degree of the respondent’s rehabilitation was

sufficient to foresee that she could resume a proper parental role in the

children’s lives within a reasonable time. In re Kyara H., supra, 147 Conn.

App. 865.

8 Another department social worker testified earlier in the trial that she

had e-mailed the respondent’s attorney notices of the respondent’s failure

to comply with the specific steps. Additionally, although the court allowed

counsel to question the department social worker on cross-examination

about who in the department was aware that the respondent’s attorney

was not contacted when the respondent did not attend the Exchange Club

program, the court stated that it ‘‘may determine under all the circumstances

that it carries no weight.’’

9 By way of example, the respondent did not ask the court to articulate

whether it found that the department failed to comply with any of the

specific steps applicable to it.