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*********************************************** 
IN RE JOHELI V.*

(AC 41349)

Alvord, Sheldon and Prescott, Js.

Syllabus

The respondent father appealed to this court from the judgment of the trial

court terminating his parental rights with respect to his minor daughter,

J. Held that there was no merit to the respondent’s claim that the trial

court erred when it determined that he had failed to achieve such degree

of personal rehabilitation as would encourage the belief that within a

reasonable time he could assume a responsible position in J’s life based

solely upon his current incarceration for allegedly sexually assaulting

J; although that court considered the respondent’s incarceration, which

it was entitled to do, it did not base its determination that the respondent

failed to rehabilitate solely on the ground that he was incarcerated,

which was one of many factors considered by the court, as the court

determined that the respondent’s efforts to rehabilitate were scant even

before his arrest in that he had unresolved mental health and substance

abuse issues, had a demonstrated inability to provide for J’s physical

and emotional needs, had neglected J’s medical and dental needs, and

had failed to comply with the specific steps previously ordered by the

court, and those findings were all amply supported in the record.

(One judge concurring separately)

Argued June 5—officially released August 6, 2018**

Procedural History

Petition by the Commissioner of Children and Families to terminate the respondent’s parental rights with

respect to his minor child, brought to the Superior Court

in the judicial district of New Britain, Juvenile Matters,

and tried to the court, Hon. Henry S. Cohn, judge trial

referee; judgment terminating the respondent’s parental

rights, from which the respondent appealed to this

court; thereafter, the court issued an articulation of its

decision. Affirmed.

Stein M. Helmrich, for the appellant (respondent).

Stephen G. Vitelli, assistant attorney general, with

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

for the appellee (petitioner).
Opinion

SHELDON, J. The respondent father, Luis V., appeals

from the judgment of the trial court terminating his

parental rights with respect to his minor child, Joheli

V.1 On appeal, the respondent claims that the court

erred when it determined, pursuant to General Statutes

§ 17a-112 (j) (3) (B), that he had failed to achieve such

degree of personal rehabilitation as would encourage

the belief that within a reasonable time, considering the

age and needs of Joheli, he could assume a responsible

position in her life, based solely upon the fact that he

is currently incarcerated and awaiting trial for allegedly

sexually assaulting Joheli.2 We affirm the judgment of

the trial court.

On August 6, 2015, the petitioner, the Commissioner

of Children and Families, filed a neglect petition in the

interest of Joheli, who has cerebral palsy and is confined to a wheelchair, alleging that she was neglected

in that she was being permitted to live under conditions

injurious to her well-being. On September 21, 2015,

Joheli was adjudicated neglected and a six month

period of protective supervision with the respondent

was ordered. The court further ordered the respondent

to comply with several specific steps to safely retain

custody of Joheli. Those steps directed the respondent,

among other things, to: develop stronger parenting

skills in the areas of supervision, hygiene, educational

support and medical care; increase his understanding

of Joheli’s developmental issues; develop a support system to assist with childcare responsibilities; maintain

a safe, nurturing and sober environment for Joheli; provide consistently for Joheli’s specialized medical needs;

attend recommended treatment consistently and comply with all aspects of his treatment plans; and develop

strategies to maintain sobriety and establish sober

supports.

On November 9, 2015, Joheli reported to her school

tutor that she had been sexually assaulted by the

respondent. The tutor reported the incident to Joheli’s

teacher, who reported it to the police, who, in turn,

contacted the petitioner. Joheli was temporarily placed

in the custody of her maternal cousin, Rebecca Soto.

The court again ordered the respondent to comply with

several specific steps to regain custody of Joheli.

On January 28, 2016, Joheli was committed to the

care and custody of the petitioner until further order

of the court. The court again issued specific steps to

the respondent.

On April 6, 2016, the respondent was arrested on

charges of sexual assault in the first degree in violation

of General Statutes § 53a-70 (a) (2) and risk of injury

to a child in violation of General Statutes § 53-21 (a) (2).

He has been incarcerated, awaiting trial, since that date.

On March 15, 2017, the petitioner filed a petition to
terminate the respondent’s parental rights. The petitioner alleged that the Department of Children and Families (department) had made reasonable efforts to

reunify Joheli with the respondent, but that the respondent was unable or unwilling to benefit from those

reunification efforts. The petitioner further alleged, in

accordance with § 17a-112 (j) (3) (B), that the respondent had failed to achieve such degree of personal rehabilitation as would encourage the belief that within a

reasonable time, considering the age and needs of

Joheli, he could assume a responsible position in her

life. The petitioner set forth the following facts in support of that allegation.3

‘‘At the time of Joheli’s removal

the presenting problems were [the respondent’s] unaddressed mental health and substance abuse issues, allegations of sexual abuse by him and his inability to

demonstrate an ability to protect and meet Joheli’s

needs on a daily basis.

‘‘[The respondent] has a history of mental health and

substance abuse issues. These concerns appeared to

have intensified around the death of his children’s

mother . . . . [The respondent] has a historic inability

to provide for the physical and emotional needs of his

children evidenced by leaving them unsupervised on

several occasions while under the influence. [The

respondent’s] substance abuse is evidenced by reports

to the department of him being under the influence.

[The respondent] has had criminal charges, which

included breach of peace, stemming from his substance

abuse issue. Based on the department’s records, [the

respondent] has participated in a variety of treatment

programs including individual and group therapy with

little benefit or change achieved. A significant barrier

to his ability to make progress toward rehabilitation is

his incarceration based on the allegations of sexual

abuse. [The respondent] has failed to benefit, gain

knowledge, and make positive changes from these services as evidenced by continuing to abuse substances

and failing to address his mental health. [The respondent] continues to fail to meet the demands of adulthood, let alone the demands of parenthood.

Additionally, he has failed to appropriately and genuinely address his mental health [or] substance use

despite access to services to assist him in doing so.’’

The petitioner noted that Joheli, then eight years old,

has ‘‘medically complex issues and requires an adequate

caregiver in order for her to appropriately grow emotionally, developmentally, medically and physically and

who must meet every aspect of her basic needs.’’

The petitioner concluded: ‘‘[The respondent] is

unable to meet his own basic needs at this time and

therefore unable to properly care for Joheli, who has

severe medical needs. [The respondent] has been

observed to minimize his substance use and the severity

of his mental health concerns. [The respondent] will
not be able to fully resume [the role of] a responsible

party in the life of his child within a reasonable time

period.’’

On July 25, 2017, the petitioner moved to amend the

termination petition to include an allegation, pursuant

to § 17a-112 (j) (3) (D), that there was no ongoing parent-child relationship between the respondent and

Joheli, which motion was granted on August 22, 2017.

On November 9, 2017, after a trial, the court orally

granted the termination petition. The court found that

the department made reasonable efforts to reunify the

respondent with Joheli, but that the respondent ‘‘did

not really seize upon these opportunities and improve

his situation.’’ The court further found, by clear and

convincing evidence: ‘‘[The respondent] had unaddressed mental health and substance abuse issues.

There was an allegation, not proved yet, of sexual abuse

by him of the child, [he] has a history of mental health

and substance abuse issues and these concerns appear

to have intensified around the death of the child’s

mother, [he] has a . . . historic inability to provide for

the physical and emotional needs of his children.

‘‘And . . . [the respondent] turned down in-home

care services. He also neglected various health issues

of the child. She’s got cerebral palsy. She’s clearly got

to have medical attention periodically, dental attention,

and that was not shown to have happened.

‘‘And the idea is that even if he somewhat engaged

in these, he did go to a therapist and he had some

sessions with a therapist and was trying to work on

these problems, the statute requires that . . . there be

a second portion of it, that even if this is going on, that

there be a reasonable time under which this reunification and resolution, rehabilitation could—the child

would and the father would resolve his problems and

take into account the needs of the child. We don’t see

that happening here.

‘‘At the time, he was—at the time of the filing of

the termination petition, he was just not meeting the

standards. The child was reporting trauma due to drinking. The poor kid was trying to pick up her father [from

the floor] and couldn’t do it with her . . . cerebral

palsy . . . .’’ The court further found that the respondent was not in compliance with the specific steps that

had been issued, and there was no evidence that ‘‘the

[respondent has] made realistic and sustained efforts

to conform . . . his conduct to even a minimally

accepted parental [standard]. Giving him additional

time will not likely bring his performance . . . within

acceptable standards.’’ On the basis of the foregoing,

the court concluded, in accordance with § 17a-112 (j)

(3) (B), that the respondent had failed to achieve such

degree of personal rehabilitation as would encourage

the belief that within a reasonable time, considering the
age and needs of Joheli, he could assume a responsible

position in her life.4 The court further concluded that

termination was in Joheli’s best interest and, accordingly, terminated the respondent’s parental rights.

On March 19, 2018, the trial court issued an articulation of its decision, reiterating that it ‘‘made no adjudicative finding on ground D, [that there was no ongoing

relationship between the respondent and Joheli]. . . .

The finding on ground B by clear and convincing evidence that father had unaddressed mental health and

substance abuse issues, that he ignored his daughter’s

health issues, that he had declined in-house services

and had an alcoholic incident involving the daughter.

It further found that the father could not address these

issues in a reasonable time period given the age and

needs of the child. He is presently incarcerated. The

child was experiencing trauma due to her relationship

with her father.’’ The court declined to ‘‘further articulate on ground D.’’5

The respondent claims on appeal that the trial court

erred in terminating his parental rights on the ground

that he had failed to achieve such degree of personal

rehabilitation as would encourage the belief that within

a reasonable time, considering the age and needs of

Joheli, he could assume a responsible position in her

life, pursuant to § 17a-112 (j) (3) (B). Specifically, he

claims that the court erred in basing that determination

solely upon his current incarceration for allegedly sexually assaulting Joheli. We are not persuaded.

‘‘Our Supreme Court has clarified that [a] conclusion

of failure to rehabilitate is drawn from both the trial

court’s factual findings and from its weighing of the

facts in assessing whether those findings satisfy the

failure to rehabilitate ground set forth in § 17a-112 (j)

(3) (B). Accordingly . . . the appropriate standard of

review is one of evidentiary sufficiency, that is, whether

the trial court could have reasonably concluded, upon

the facts established and the reasonable inferences

drawn therefrom, that the cumulative effect of the evidence was sufficient to justify its [ultimate conclusion].

. . . When applying this standard, we construe the evidence in a manner most favorable to sustaining the

judgment of the trial court. . . . We will not disturb

the court’s subordinate factual findings unless they are

clearly erroneous. . . .

‘‘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. . . . [Section 17a112] requires the trial court to analyze the [parent’s]

rehabilitative status as it relates to the needs of the

particular child, and further, that such rehabilitation

must be foreseeable within a reasonable time. . . .

[The statute] requires the court to find, by clear and

convincing evidence, that the level of rehabilitation

[that the parent has] achieved, if any, falls short of that
which would reasonably encourage a belief that at some

future date [he] can assume a responsible position in

[his] child’s life. . . . [I]n assessing rehabilitation, the

critical issue is not whether the parent has improved

[his] ability to manage [his] own life, but rather whether

[he] has gained the ability to care for the particular

needs of the child at issue. . . . As part of the analysis,

the trial court must obtain a historical perspective of

the respondent’s child caring and parenting abilities,

which includes prior adjudications of neglect, substance abuse and criminal activity. . . .

‘‘The statute does not require [a parent] to prove

precisely when [he] will be able to assume a responsible

position in [his] child’s life. Nor does it require [him]

to prove that [he] will be able to assume full responsibility for [his] child, unaided by available support systems.

. . . In determining whether a parent has achieved sufficient personal rehabilitation, a court may consider

whether the parent has corrected the factors that led

to the initial commitment, regardless of whether those

factors were included in specific expectations ordered

by the court or imposed by the department. . . . In

the adjudicatory phase, the court may rely on events

occurring after the date of the filing of the petition to

terminate parental rights when considering the issue

of whether the degree of rehabilitation is sufficient to

foresee that the parent may resume a useful role in

the child’s life within a reasonable time.’’ (Citations

omitted; internal quotation marks omitted.) In re Damian G., 178 Conn. App. 220, 237–39, 174 A.3d 232 (2017),

cert. denied, 328 Conn. 902, 177 A.3d 563 (2018).

In challenging the court’s finding that he failed to

rehabilitate, the respondent argues that the court failed

‘‘to consider [his] incarceration status and the potential

[that] he could be found innocent . . . [and that his]

rights were terminated based on an allegation for which

he maintains his innocence and has yet to face trial

. . . .’’ (Citation omitted.) In so arguing, the respondent

misconstrues the trial court’s decision. Although the

court considered the respondent’s incarceration, which

it is entitled to do, as acknowledged by the respondent

himself; see, e.g., In re Katia M., 124 Conn. App. 650,

661, 6 A.3d 86 (parent’s unavailability, due to incarceration, properly considered ‘‘an obstacle to reunification’’), cert. denied, 299 Conn. 920, 10 A.3d 1051 (2010);

it did not base its determination that the respondent

failed to rehabilitate solely on the ground that he was

incarcerated. The court determined that the respondent’s efforts to rehabilitate were scant even before

his arrest. The court noted that the respondent had

unresolved mental health and substance abuse issues,

and a demonstrated inability to provide for the physical

and emotional needs of Joheli. The court found that the

respondent had neglected Joheli’s medical and dental

needs and failed to comply with the specific steps previously ordered by the court. The respondent does not
dispute these findings, which, we note, are amply supported in the record. It is clear from the record that

the respondent’s incarceration was only one factor of

many upon which the court based its determination

that he had failed to achieve such degree of personal

rehabilitation as would encourage the belief that within

a reasonable time, considering the age and needs of

Joheli, he could assume a responsible position in her

life. The respondent’s claim is therefore without merit.6

The judgment is affirmed.

In this opinion ALVORD, J. 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.

** August 6, 2018, the date that this decision was released as a slip opinion,

is the operative date for all substantive and procedural purposes.

1

Joheli’s mother passed away unexpectedly in January, 2015, due to a

medical condition.

2 Section 17a-112 (j) provides in relevant part: ‘‘The Superior Court, upon

notice and hearing as provided in sections 45a-716 and 45a-717, may grant

a petition [terminating parental rights] if it finds by clear and convincing

evidence that . . . (3) . . . (B) the child . . . has been found by the Superior Court or the Probate Court to have been neglected, abused or uncared

for in a prior proceeding . . . and the parent of such child has been provided

specific steps to take to facilitate the return of the child to the parent

pursuant to section 46b-129 and has failed to achieve such degree of personal

rehabilitation as would encourage the belief that within a reasonable time,

considering the age and needs of the child, such parent could assume a

responsible position in the life of the child . . . .’’

3 The petitioner also alleged, pursuant to § 17a-112 (j) (3) (C), that Joheli

had been denied, by reason of an act or acts of parental commission or

omission including, but not limited to, sexual molestation or exploitation,

severe physical abuse or a pattern of abuse, the care, guidance or control

necessary for her physical, educational, moral or emotional well-being. The

petitioner withdrew that allegation prior to trial.

4 The court indicated that it would was ‘‘going to go with ground B because

I think it’s the simplest and clearest here.’’

5 Because the trial court addressed only the petitioner’s claim that the

respondent failed to rehabilitate, and declined to adjudicate the petitioner’s

claim that the respondent’s parental rights should be terminated because

he had no ongoing relationship with Joheli, this court issued an order, sua

sponte, instructing the parties to be prepared to address at oral argument

the issue of whether there is an appealable final judgment in this case

pursuant to Meribear Productions., Inc. v. Frank, 328 Conn. 709, 183 A.3d

1164 (2018), in which our Supreme Court held: ‘‘[W]hen the trial court

disposes of one count in the plaintiff’s favor, such a determination implicitly

disposes of legally inconsistent, but not legally consistent, alternative theories. When a legally consistent theory of recovery has been litigated and

has not been ruled on, there is no final judgment.’’ Id., 723–24. Because the

two statutory grounds alleged by the petitioner in this case, grounds B and

D, are not different theories of recovery, as contemplated in Meribear, but,

rather, are simply two alternative bases upon which the court could have

based its adjudication of a single cause of action, termination of the respondent’s parental rights, we conclude that Meribear does not apply to this

case, and thus that the respondent has properly appealed from a final judgment over which we have subject matter jurisdiction.

6 The respondent also claims that the court’s determination that the termination of his parental rights was in Joheli’s best interest should be reversed

if we determine that the court erred in finding that he failed to rehabilitate.

Because we affirm the court’s determination that the respondent failed to

rehabilitate, and his claim to the contrary was the sole basis for his challenge

to the best interest finding, his claim that the court erred in concluding that

termination was in Joheli’s best interest also fails.