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IN RE SHANE M.—DISSENT

ZARELLA, J., with whom ROBINSON, J., joins, dissenting. I am deeply troubled by the majority’s decision

to affirm the judgment of the Appellate Court, which

upheld the trial court’s termination ofthe parentalrights

of the respondent father, Matthew M. (father). The trial

court found, by clear and convincing evidence, that the

Department of Children and Families (department) had

proven that ‘‘the level of rehabilitation achieved by the

parents falls far short of that which would reasonably

encourage the belief that at some future date either

parent could assume a safe, reliable and responsible

position in [Shane M.’s] life given his age and needs.’’1

In making this finding, the court relied heavily on the

report and testimony of Derek A. Franklin, a licensed

clinical psychologist who conducted a psychological

evaluation of the father on September 20 and 25, 2012,

‘‘[to] assist the court [in determining] the father’s rehabilitative status now and in the foreseeable future to

parent Shane.’’2 The trial court deemed Franklin’s report

and testimony ‘‘highly credible’’ and agreed with his

recommendation that the father’s parentalrights should

be terminated because the recommendation was based

on Franklin’s ‘‘review of the history, the empirical data,

and his findings that a number of concerns continue to

persist, specifically [the] father’s failure to continue

with substance abuse treatment, his need for active

monitoring and testing for drug abuse, his lack of insight

in addressing his ongoing anger issues, his need for a

comprehensive evaluation concerning his medication

needs, and his failure to achieve sufficient personal

rehabilitation after such an extensive period of time

. . . .’’ In my view, however, Franklin’s findings and

recommendation were insufficient to support the trial

court’s conclusion. Franklin failed to consider several

treatment programs that the father successfully completed during the preceding year for the purpose of

complying with the specific steps, and, therefore,

Franklin’s findings and recommendation were based in

part on outdated information that did not describe the

father’s condition at the time of the termination proceeding. In addition, Franklin failed to consult any of

the substance abuse or mental health counselors who

had been working with the father for the past several

years and thus did not have the benefit of their opinions.

Rather, Franklin relied on a series of department

reports, some of which were outdated and did not

describe the father’s recent progress, and on a battery

of personality tests that provided information regarding

the general propensities of persons with similar results

but no information regarding the father’s actual behavior. Accordingly, to the extent the trial court found, on

the basis of Franklin’s findings and recommendation,

that the father had failed to rehabilitate, its finding
was not supported by clear and convincing evidence

because Franklin’s conclusions were based in large part

on generalized propensity information and a series of

outdated department reports, and any remaining facts

the trial court correctly found were insufficient to support the termination of the father’s parental rights.

I first note that, under the newly clarified standard of

review, we review the trial court’s subordinate factual

findings for clear error. Underthis standard, ‘‘[a] finding

is clearly erroneous when either there is no evidence

in the record to support it, or the reviewing court is

left with the definite and firm conviction that a mistake

has been made. . . . On appeal, [our] function is to

determine whether a trial court’s conclusion was factually supported and legally correct.’’ (Internal quotation

marks omitted.) In re Jorden R., 293 Conn. 539, 558–59,

979 A.2d 469 (2009). We review the trial court’s ultimate

conclusion as to whether a parent has failed to rehabilitate, however, to determine ‘‘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 findings.’’ (Internal quotation marks omitted.) In re Soncheray H., 42 Conn. App. 664, 668, 680

A.2d 1363, cert. denied, 239 Conn. 940, 684 A.2d 712

(1996). Under both standards, ‘‘we construe the evidence in a manner most favorable to sustaining the

judgment of the trial court.’’ Id.; see also In re Jorden

R., supra, 559 (‘‘every reasonable presumption is made

in favor of the trial court’s ruling’’ [internal quotation

marks omitted]).

Turning to Franklin’s specific findings, I begin with

several general comments regarding the information on

which Franklin relied. First, Franklin interviewed the

father directly for only a little more than two hours.3

In addition, Franklin observed the father during a forty

minute supervised visit with Shane, as ordered by the

court. Although Franklin also was in possession of the

test results and other documentation provided by the

department, I believe two hours and forty minutes of

interacting with the father and observing him with

Shane was an insufficient amount oftime with the father

to determine his rehabilitation status.

Second, Franklin testified that the results of several

of the father’s personality tests4 discussed in Franklin’s

report did not necessarily describe the father but,

rather, described the general propensities of persons

with similar test results.5 Thus, to the extent the interpretive section of Franklin’s written report suggested

that the propensities indicated by the test results

described the father’s actual conduct, there is no support for this conclusion.6

Third, the collateral data sources the department provided to Franklin consisted of eleven documents prepared by three different department social workers who
supervised the father’s case from the summer of 2010

to September, 2012, but who never worked directly with

the father as therapists or counselors. In addition, four

of the eleven documents were prepared before the specific steps were ordered on November 19, 2010,7

four

other documents were prepared after the specific steps

were ordered but more than one year before Franklin

interviewed the father,8 and, of the three remaining

documents, two were prepared approximately ten

months, and the other approximately three months,

before Franklin interviewed the father.9 The department

thus provided Franklin with very little recent information regarding the father’s rehabilitation progress at the

time of the evaluation. Furthermore, Franklin stated in

his written evaluation that the ‘‘most recent status

report update that [he was] in receipt of from [the

department was] dated July 6, 2011,’’ almost fifteen

months before Franklin’s evaluation of the father in late

September, 2012. This admission not only suggests that

Franklin relied on outdated information, but raises the

question of whether Franklin was aware of the status

updates included in the three most recent department

documents relating to the termination proceeding that

were listed as collateral data sources in Franklin’s

report. See footnote 9 of this opinion.

Fourth, although the collateral data sources contained references to most of the father’s substance

abuse and mental health counselors, including Nancy

Burgos, Charles Frazier, Lisa Sargis, and Rudolph

Thomas, Franklin testified that he failed to speak with

any of these counselors in orderto learn firsthand about

the father’s progress and condition. In explaining this

omission, Franklin stated that he was allowed to speak

only to persons authorized by the department and that,

if the names of the father’s service providers were not

included on the list of authorized persons, he made no

effort to contact them.10 He added that he typically

called all service providers listed by the department

when evaluations were requested, that he had done so

in this case, and that none of his calls had been returned,

although he was unable to remember the names of

specific persons he had called. Franklin thus prepared

his report without the input of a single service provider,

many of whom gave testimony at the termination hearing in January, 2013, regarding the father’s condition

and progress that flatly contradicted Franklin’s findings. Although the trial court neither credited nor discounted this testimony, it very likely would have influenced Franklin’s report and recommendation, which

the trial court cited multiple times in concluding that

the state had satisfied its burden of proving the father’s

failure to rehabilitate by clear and convincing evidence.

In sum, I believe the foregoing limitations in Franklin’s report resulted in findings by the trial court regarding the level of rehabilitation achieved by the father

that were not supported by clear and convincing evi-
dence, and, therefore, ‘‘the trial court could [not] 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 [finding]’’ that the father had failed to rehabilitate. In re Soncheray H., supra, 42 Conn. App. 668. In

the text that follows, I describe each of the concerns

that, according to Franklin and the trial court, continued

to persist at the time of Franklin’s evaluation and that

served as the basis for the termination of the father’s

parentalrights. I then describe the conflicting testimony

of the service providers, who worked with the father

over a period of months and years, that casts doubt on

the trial court’s conclusion that the father had failed

to rehabilitate.

I

SUBSTANCE ABUSE

The trial court found, on the basis of Franklin’s report

and testimony, that the father had been diagnosed with

cannabis abuse and that the testing data suggested there

was a ‘‘high potential for relapse’’ and for ‘‘continued

use or cravings, which [would] need to be monitored

and addressed.’’ The court referred to test results

obtained by Franklin and described in his report showing an elevation in the clinical domain of substance

abuse and noted Franklin’s opinion that testing profiles

indicating evidence of ‘‘mood dysregulation exacerbated by anxiety’’ suggested that the father was likely

to continue abusing substances to obtain emotional

control and management of his anxiety. The trial court

also cited Franklin’s recommendation that the father

should continue to be treated for substance abuse and

‘‘engage in substance abuse groups due to his concern

that [the] father was actively using [drugs], as the clinical data suggest[ed] that, at [the] very minimum, he

continue[d] to crave cannabis and, therefore, [was] subject to relapse.’’ (Internal quotation marks omitted.)

The court finally noted Franklin’s recommendation that

the father, in addition to participating in substance

abuse groups, should be subject to ‘‘active monitoring

and testing for drug abuse . . . .’’

The trial court’s findings regarding the father’s substance abuse cravings and relapse potential, however,

were clearly erroneous insofar as they applied to the

father in September, 2012, because they were based

on Franklin’s description of the father’s diagnosis of

substance abuse in 2010 and 2011, and the general profile evidence in Franklin’s report, which, as previously

discussed, described the propensities of persons with

test results similar to those of the father rather than

the father’s condition at the time of the termination

proceeding. The finding in Franklin’s report that the

fatherrefused to participate in recommended substance

abuse counseling, which the trial court also relied on

in concluding that he required additional treatment, was
likewise clearly erroneous because it contradicted the

testimony of the father’s substance abuse counselor.

Erica Cyr, a psychotherapist at Community Health

Resources who evaluated the father for substance

abuse on June 13, 2012, and was a witness for the

department, testified that, although the father initially

did not want to participate in recommended group therapy for substance abuse, he changed his mind within

one week and attended thereafter on a regular basis.

She ultimately counseled the father for twelve weeks,

from the end of August to December, 2012, in order to

address his mental health and substance abuse issues,

and testified that three random urine screens for substance abuse were negative during that time, although

she was aware of one positive hair test. She described

the father as an active participant in the group who had

a good understanding of substance abuse and that, as

of January, 2013, she believed he was in remission and

that no further treatment was necessary. The department’s own witness thus indicated that, in late September, 2012, when Franklin was conducting his evaluation,

the father was participating successfully in group therapy for substance abuse.

Franklin, however, did not have this information

when he prepared his report because he failed to follow

up on the calls he said he had made to the authorized

persons on the department’s list. Franklin specifically

testified he did not speak with Cyr, did not recall if he

had attempted to contact her, and was not aware of her

opinion regarding the father’s drug dependency issues

when he conducted his evaluation. He nonetheless

admitted it was ‘‘critical’’ and ‘‘absolutely important’’

to know how the father was doing in a drug treatment

program in order to conduct a proper substance abuse

evaluation. Accordingly, the trial court’s finding, based

on Franklin’s report, that the father required additional

substance abuse treatment because he was in danger

of a potential relapse was clearly erroneous because it

was not supported by clear and convincing evidence.

II

ANGER MANAGEMENT ISSUES

The trial court also relied on Franklin’s findings

regarding the father’s anger management issues in concluding that he had failed to rehabilitate. The court

stated: ‘‘Franklin diagnosed [the] father with attention

deficit hyperactivity disorder[ADHD], generalized anxiety disorder, and cannabis abuse and antisocial traits.

. . . Testing performed by . . . Franklin indicated elevations [in] the clinical domains of ADHD, anxiety, paranoia . . . antisocial [traits] and aggression. There was

no evidence of a major depressive disorder, but there

was sufficient evidence of mood dysregulation exacerbated by anxiety. Specifically, [d]omains tapping for

anxiety suggest prominent worry. These worries may
be of such magnitude that concentration and attending

are compromised. . . . Franklin also opined that [the]

father scored in the clinically relevant range for paranoia. He is hypervigilant and closely monitors his environment for evidence that others are out to harm him.

He is overly suspicious. [Psychological testing] indicate[s] hostility and mistrust [in] even close relationships. He is easily insulted and tends to hold grudges.

Paranoia does not arise to a level of delusions. There

is no evidence of auditory, visual or kinesthetic hallucinations or disturbance in thought content or processing.

Domains . . . tapping for aggression are indicative of

a short fuse, as he is quick to anger . . . . [H]e is more

likely to use verbal reasoning than physical aggression.

However, he may become frustrated easily and, when

provoked, will not back down from confrontation. This

may lead to physical acts of violence. He otherwise

possesses adequate commonsense reasoning, and [his]

judgment is situation specific. . . . Franklin further

opined that [the] father was emotionally stable, but

there was evidence to indicate that he may become

hostile when under emotional duress.

‘‘With regard to [the] father’s mental illness . . .

Franklin opined that [the] father’s anxiety, mood dysregulations, and ADHD marginally impact his day-today functioning but that these are likely to be exacerbated under the weight of emotional and psychological

distress. He recommended treatment for these issues

. . . .’’ (Internal quotation marks omitted.)

Franklin’s negative evaluation appears to be based

entirely on the father’s test results and thus does not

describe the personality and behavioral characteristics

that the father actually exhibited in September, 2012,

but, rather, the propensities of persons with similar

test results. In fact, testimony from the father’s mental

health counselors, who worked with him over a period

of almostthree years, indicates that, in September, 2012,

and thereafter, he either did not display most of the

characteristics described in Franklin’s profile or gradually overcame them.

Burgos, a clinical social worker at Radiance Innovative Services (Radiance) who conducted mental health

assessments and made recommendations regarding

treatment, evaluated the father in September, 2010,11

for mental health issues and diagnosed him with an

adjustment disorder accompanied by mixed depression

and anxiety. Burgos recommended that he participate

in a parenting program and long-term therapy to address

his ‘‘current life situation,’’ adding that ‘‘[h]e was essentially in crisis in relation to his tumultuous relationship

with [Shane’s mother] and having a very difficult time

coping, especially very nervous and anxious about the

custody of [Shane].’’ She stated that ending the relationship with Shane’s mother likely would resolve some of

his mental health issues, which appeared to be ‘‘situa-
tional,’’ and that the father had indicated to her that he

had enjoyed, learned and profited from the parenting

program.

Sargis, a clinical social worker at Radiance who was

the father’s counselor from May, 2011, through January,

2012, worked with him on problem solving skills, coping

skills and relaxation techniques to reduce his level of

anxiety. She testified that, after she gotto know him, she

concluded he was doing much better than she originally

had believed because he was juggling two different jobs

as well as coming to the counseling visits and attending

parenting and domestic violence classes; in her view,

this busy schedule would cause anxiety in any ordinary

person. She acknowledged a concern regarding his

impulse control upon learning of an incident at his

grandparents’ home in November, 2011, during which

he had poured gasoline on their kitchen floor, and thus

recommended that he continue to work on anger management and coping skills when she left for another

position in January, 2012. She nonetheless concluded

that the father was functioning in most areas of his life,

had listened and responded positively to her suggestions regarding anger management and coping skills,

felt remorse about the incident at his grandparents’

home, and, as time went by, his anxiety seemed to

subside. She also testified that he did not miss his

appointments, would arrive on time, and was cooperative and open-minded.

Thomas, a social worker at Radiance who had been

counseling the father since January, 2012, when Sargis

left, and was continuing in that capacity when he testified at the termination hearing in January, 2013, also

worked with the father in the parenting program for

thirteen weeks. He testified that the father consistently

attended and fully participated in the program and that

he was nurturing and able to share his ideas about how

to parent a child. Thomas stated that the department’s

goals for the father were to learn how to parent a young

child, deal with substance abuse, obtain gainful employment, and resolve his anxiety issues. With respect to

these goals, Thomas described the father as consistently employed and as having no hyperactivity issues.

Thomas also testified that the father was doing well

managing his anxiety, which no longer was a concern.

He explained that the father could be stubborn and

opinionated at times, but that was part of his personality

and not a mark against him, especially because he could

listen to and take advice. Thomas described the calming

techniques that he had discussed with the father and

then provided an example of how the father used them

effectively, at Thomas’ suggestion, in the course of

obtaining a change in position at his workplace in order

to avoid contact with a manager who was ‘‘getting on

his nerves.’’

Finally, Frazier, a clinical social worker and the presi-
dent of Radiance who had worked with the father as a

facilitator in a domestic violence group in 2011 through

2012, described him as anxious by nature because he

was a person who wanted to do things quickly and to

do the right thing, but that he did not see this quality

as a negative. Frazier testified that the father always

was cooperative and engaged during the twenty-four

week program, which he completed in 2012, and that

he voluntarily shared his perspective. He also was, for

the most part, on time and attended most classes,

although there were occasional conflicts with his two

jobs. Frazier further testified that he always had

believed the father’s domestic violence risk was low

and that he had changed over the course of the program

from denying that he was an offender, at the beginning,

to understanding that domestic violence covers a wide

spectrum of behavior and recognizing that he had been

an offender. Frazier testified that the father was using

the skills he learned in the group and that he understood

and demonstrated insight into how important a violence

free environment is to children, as well as the adverse

consequences for children who are exposed to violence.

Frazier added that he had seen growth in the father’s

ability to manage impulsive behaviors and anxiety and

to develop a long-term perspective in problem solving.

From this testimony, it is clear that the father’s therapists and counselors, who had worked with him during

the two years prior to Franklin’s evaluation, believed

that the father had made progress and no longer displayed a high level of anger or hostility when dealing

with stressful situations. This was especially apparent

from Frazier’s testimony aboutthe father’s participation

in the domestic violence program and from Thomas’

testimony explaining how the father had resolved a

stressful situation at his workplace in a constructive

manner without overreacting. If Franklin had had the

benefit of these observations by the father’s therapists

and counselors, his conclusions regarding the father’s

progress and his ultimate recommendation might have

been quite different. Accordingly, the trial court’s finding that the father continued to demonstrate a ‘‘lack of

insight in addressing his ongoing anger issues,’’ which

was based on the report Franklin prepared without the

benefit of consulting the father’s service providers, was

clearly erroneous because that finding was not supported by clear and convincing evidence.

III

MEDICATION NEEDS

The trial court also expressed concern regarding the

father’s refusal to participate in a comprehensive psychiatric evaluation to determine if medication was

required to address his mental health issues. The trial

court stated: ‘‘Notably, [Franklin] opined that it was

imperative that [the] father be referred for a psychiatric

consultation in light of his impulse control issues and
ADHD, and that would serve to identify medication

that could be useful in ameliorating or managing his

symptoms, and that, without medication, [the] father

would most likely continue to have problems.’’ Franklin’s recommendation, however, was based on a single

tentative comment by one ofthe father’s priortherapists

that never was repeated by any of his subsequent therapists or counselors. Rather, medication to control his

mental health issues apparently became unnecessary

based on the progress described by Thomas and Frazier

in their testimony. See part II of this opinion.

As previously discussed, Burgos, the clinical social

worker at Radiance who initially conducted a mental

health evaluation of the father in September, 2010,

before the specific steps were ordered, testified that

she believed he required long-term therapy to address

his ‘‘current life situation,’’ meaning his ‘‘tumultuous

relationship’’ with Shane’s mother, and that ending the

relationship with Shane’s mother, which he had done

at least one year prior to his interview with Franklin,

very likely would resolve some of his mental health

issues. Notably, Burgos did not recommend an evaluation for medication.

Thereafter, the only counselor who recommended

possible medication was Sargis, who worked with the

father in 2011, after Burgos left for another position.

Sargis testified that she suggested initially that the

father see a psychiatrist for a medical evaluation to

cope with current stresses in his life, acknowledged a

concern regarding his impulse control upon learning of

the incident at his grandparents’ home in November,

2011, and recommended that he continue to work on

anger management and coping skills when she left for

another job in January, 2012. Sargis also testified that

she did not know if medication was required because

she was not a psychiatrist and noted that the father

seemed to be functioning well in most areas of his life.

Under Thomas’ guidance, the father’s anxiety reportedly diminished. Thomas specifically testified that the

father no longer had hyperactivity issues and that his

anxiety no longer was a concern. Frazier also testified

that the father had done well in his domestic violence

class, was a low risk for violence, and had developed

insight into his anger management issues. As a consequence, the trial court’s findings, based on Franklin’s

report, that the father still had impulse control issues

that required medication and that he most likely would

continue to have problems managing his symptoms

without medication were clearly erroneous because

they were not supported by clear and convincing evidence from the father’s therapists and counselors, each

of whom had worked with him for many months and

knew him far better than Franklin.

IV

FAILURE TO ACHIEVE SUFFICIENT
REHABILITATION

The trial court ultimately agreed with Franklin’s finding that the father had failed to achieve sufficient personal rehabilitation in the two years preceding the termination proceeding. Although the trial court did not

provide more detail regarding the factors on which

Franklin relied in making this finding, Franklin’s report

ended with a recommendation that the father’s parental

rights should be terminated because (1) he had not

continued with substance abuse treatment, (2) he had

not participated in the domestic violence classes he

needed to manage his anger, and (3) the time required

to address these concerns had long since passed. As

previously discussed, however, the father did continue

with group therapy for substance abuse, and his counselor, Cyr, testified that he was in remission and

required no further treatment. Frazier also testified that

the father had completed a twenty-four week domestic

violence program in 2012, presented a low risk of violence, and was using the skills he had learned in the

group in his daily life. Thomas likewise testified that

the father had demonstrated growth and was doing well

with his problem solving skills. Accordingly, two of

the three major findings that provided the basis for

Franklin’s recommendation to terminate the father’s

parental rights and the trial court’s ultimate conclusion

that the father had failed to rehabilitate were clearly

erroneous because they were not supported by clear

and convincing evidence.

V

OUTSTANDING UNRESOLVED STEPS

One of the last persons to testify at the termination

hearing in March, 2013, wasAmita Patel,the mostrecent

department social worker assigned to the father’s case.

In her report dated March 15, 2013, entitled ‘‘Amended

Addendum to Social Study,’’ she noted that the father

had completed the group therapy program for substance abuse at Community Health Resources, that no

further treatment was recommended, and that the

results of an unsupervised urine screen on March 4,

2013, were negative. She also noted that the father had

successfully completed the terms of his probation on

February 10, 2013, although he had been issued a speeding ticket on February 6, 2013. She further stated that

the father reported he would share childcare duties

with his new wife upon reunification with his children

and that he planned on using family members as backup

caregivers. Patel stated that she had met the father’s

wife and that she maintained full-time employment, was

willing to participate in a substance abuse evaluation

and was confident in her parenting skills, as she had

helped raise her godchild, nieces and nephews.

In her report and testimony, Patel stated that the

department’s recommendation to terminate the father’s
parental rights came down to three as yet unsatisfied

requirements, namely, taking a hair follicle test, participating in the psychiatric evaluation recommended by

Franklin to determine his need for medication, and

accepting a parent mentor during visitation to enhance

his parenting skills. I do not believe, however, that the

father’s failure to comply with these three requirements

could have led the trial court to reasonably conclude,

upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of

the evidence was sufficient to establish that the father

had ‘‘failed to achieve the degree of personal rehabilitation that would encourage the belief that within a reasonable period of time, considering the age and needs

of [Shane], [he] would assume a responsible position

in the life of [that] child.’’

The father’s therapists and counselors did not agree

with Franklin that the father continued to have serious

anger management issues, which was the basis for

Franklin’s recommendation that the father undergo a

psychiatric examination to determine his need for medication. Accordingly, this recommendation was not supported by clear and convincing evidence of such a need.

Next, although the father resisted having a parent

mentor at the visitations, he stated that he would be

open to a mentor if he should be reunited with his two

children. The department’s recommendation that the

father be assisted by a parent mentor during the visitations was apparently based on a suggestion by one of

the visitation supervisors that the father would ‘‘benefit’’ from ‘‘a parent aide or some parental guidance

. . . .’’ This same supervisor, however, also reported

that the father’s visitations were going well.

Keva Noel, an independent consultant who worked

for Radiance and supervised the father’s visitation with

Shane and Shane’s younger brother from April, 2012,

until the time she testified in January, 2013, described

the father’s interactions with Shane and his brother as

‘‘appropriate.’’ She elaborated that, although the father

sometimes became frustrated, he normally conducted

himself with a calm demeanor and used a level tone of

voice. Noel stated that the only recommendation she

had made was during the summer of 2012, when she

suggested that the father could benefit from a parent

aide or some parental guidance during his visits because

of the conflicting demands of two very young children

of different ages. She nonetheless stated that the overall

success of the visits had been good, the father had

interacted well with Shane, the two had bonded, and

the only improvement would be learning how to better

attend to the two children simultaneously.

Thomas likewise gave positive testimony regarding

the father and his parenting skills. He testified that,

when the father attended the parenting program conducted by Thomas, the father was receptive and open to
parenting ideas, and that his own ideas were consistent

with those discussed in the training program. Thomas

also described the father as a ‘‘nurturing kind of person’’

and indicated that he would be interested in having

follow-up visits with the father after reunification to

assist with the transitioning process. Thomas added

that the father’s new wife was ready to support and

help the father if he was reunified with his children.

Additional evidence regarding the father’s parenting

skills was provided by Shane’s foster mother. She testified that she had been present during three of the

father’s supervised visits with Shane and that the visits

went very well. In fact, she described the atmosphere

as ‘‘like a birthday for Shane and also for the sibling,’’

and stated that the father was ‘‘great’’ with the children.

She also testified that, about one year earlier, the father

had met the foster parents and Shane at a fast-food

restaurant and that this occasion also went smoothly

but that, two months later, a department social worker

called and told the foster parents not to reach out to

the father until further notice. She added that the father

had given her a book with his voice, which Shane recognized as his father’s voice, and that the father sent

Shane gifts for Christmas and his birthday. Accordingly,

although the father did not satisfy the department

requirement of a parent mentor during his visitations

with Shane, his resistance must be considered in light

of other evidence indicating that he had a positive relationship and demonstrated appropriate parenting

behavior with Shane, that his new wife was willing to

assist him in parenting Shane, that he was willing to

accept a mentor upon reunification and that Thomas

had expressed interest in advising him on parenting

issues should reunification occur.

The department’s final unsatisfied requirement was

the hair follicle test. Although the father refused this

test and gave different excuses for doing so, his most

recent excuse was that his attorney had advised him

not to take it.

In conclusion, because there appears to be no basis

for the psychiatric evaluation to determine the father’s

medication requirements, and because the father

agreed to a parent mentor should the department order

reunification, I believe the only remaining department

requirement that has not been satisfied is the hair follicle test. Accordingly, the father’s failure to complete

these three requirements does not, in my view, satisfy

the standard that ‘‘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’’ determination that the father failed to achieve the level of

rehabilitation required to reunify with Shane. (Emphasis added.)In re Soncheray H., supra, 42Conn.App. 668.

VI
THE MAJORITY OPINION

Given the deficiencies in Franklin’s evaluation of the

father, including Franklin’s failure to consider the testimony of the father’s service providers in making his

findings and recommendation, I disagree with the

majority thatthe trial court properly determined, largely

on the basis of Franklin’s report, that the father could

not achieve the level of rehabilitation required by the

department in the reasonably foreseeable future.

In concluding that the father failed to rehabilitate,

the majority relies on evidence regarding the father’s

conduct prior to November 24, 2010, including the car

seat incident, several protective orders for domestic

violence involving Shane’s mother, and the father’s

arrest for breach of the peace resulting from his attempt

to break down the door to the home of Shane’s mother.

This evidence, however, describes the father’s conduct

before the specific steps were ordered and, therefore,

has no relevance except as a baseline against which to

measure his future rehabilitation.

The remaining evidence on which the majority relies

appears to be based on department reports concerning

events in 2011, including the incident at the home of

the father’s grandparents and an arrest that was not

reported to the department for possession of a controlled substance. The incident at the grandparents’

home, during which the father poured gasoline on the

kitchen floor and threatened but did not light or attempt

to light a fire,resulted in a charge of disorderly conduct,

a protective order between the father and his grandfather, and a sentence of three months incarceration,

execution suspended, and one year of probation. Notably, the father subsequently expressed his remorse to

Sargis and successfully completed his probation on February 10, 2013. He also successfully completed a twelve

week domestic violence program with Frazier, who testified that the father was a low risk for violence, had

come to accept that he had been an offender, and had

demonstrated insight and growth. Thomas further

reported that he believed the father no longer had any

hyperactivity or anxiety issues and had learned how to

use various calming techniques for dealing with stressful situations. Thomas added that the father and his

grandfather now have a better relationship and that the

father and his grandmother were still close. Nevertheless, neither Franklin nor the trial court marshaled and

cited this evidence relating to the father’s rehabilitation

efforts and achievements following the gasoline pouring

incident to assess what he had accomplished.

The only negative event on which the majority relies

that occurred in 2012 was the father’s refusal to take

the single positive hair follicle test. Yet the majority

concludes that ‘‘the [father] fail[ed] to continue with

substance abuse treatment . . . [needed] active moni-
toring and testing for drug abuse . . . [lacked] insight

in addressing his ongoing anger issues . . . [needed]

a comprehensive evaluation concerning his medication

needs, and . . . [failed] to achieve sufficient personal

rehabilitation after such an extensive period of time

. . . .’’ (Internal quotation marks omitted.) This quoted

material is taken directly from the trial court’s memorandum of decision, which is subject to the flaws discussed in this opinion. Accordingly, I would conclude

that, in light of the testimony provided by the father’s

therapists and counselors, and the lack of any further

incidents of major concern during the year or more

prior to the termination proceeding, the trial court’s

determination that the father had failed to rehabilitate

was not reasonable in light of the entire evidence. I

also would conclude that the remaining evidence of the

father’s refusal to take another hair test and to accept

a parent mentor at his visitations, given that he was

willing to accept a mentor and further counseling if

he should be reunited with Shane, was insufficient to

conclude that the level of rehabilitation the father

achieved fell short of that which would reasonably

encourage a belief that, at some future date, the father

could assume a responsible position in Shane’s life.12

See, e.g., In re Elvin G., 310 Conn. 485, 507, 78 A.3d

797 (2013). Thus, I believe this court should reverse the

judgment of the Appellate Court and remand the case

with direction to reverse the judgment of the trial court

terminating the father’s parental rights.13

Accordingly, I respectfully dissent.

1

‘‘We previously have explained that [p]ersonal rehabilitation . . . refers

to the restoration of a parent to his or her former constructive and useful

role as a parent . . . [and] 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. . . . [General Statutes § 17a-112 (j) (3) (B) (ii)] 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. It requires the court to find, by clear and convincing

evidence, that the level of rehabilitation [he] 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.’’ (Internal

quotation marks omitted.) In re Elvin G., 310 Conn. 485, 507, 78 A.3d

797 (2013).

2 The evaluation was conducted pursuant to a court order issued in

response to the department’s motion dated August 8, 2012, requesting a

psychological evaluation of Shane’s mother and the father pursuant to General Statutes § 45a-717 (d). The motion stated in relevant part: ‘‘[T]he [department] . . . hereby requests that [the] . . . court order a . . . clinical

evaluation of the father with parent-child interactions. . . .

‘‘The department filed a termination of parental rights petition in November, 2011. The parents’ mental health has repeatedly been a presenting child

protection issue in addition to substance abuse, transience, and criminal

activity. . . .

‘‘The father is . . . diagnosed with substance abuse and mental health

issues. . . . A full clinical assessment will assist the court to determine the

father’s rehabilitative status now and in the foreseeable future to parent

Shane. . . .

‘‘Wherefore, the department requests that the court order the psychological evaluation as requested.’’

The trial court granted the motion and ordered the psychological evaluation on August 21, 2012.
3 Franklin testified that he spent a total of five hours with the father,

during two of which the father was taking tests by himself. Franklin also

observed the father and Shane during a forty minute supervised visit, thus

leaving slightly more than two hours to conduct a one-on-one interview

with the father.

4 Franklin administered one intelligence test, four mental status and personality tests, and one substance abuse test.

5 The following colloquy took place during the father’s counsel’s crossexamination of Franklin:

‘‘[The Father’s Counsel]: You say . . . [in] your report . . . drug usage

has created considerable problems in interpersonal relationships, work performance may have been compromised in the past. On what basis do you

make that comment?

‘‘[Franklin]: The personality portion of the evaluation is not based on an

opinion. So what you are repeating here is not my opinion or, in fact, an

interpretation. It’s based on what the data [are] suggesting. So, if he has

certain elevations with regard to drug usage or drug domain, the data [are]

suggesting that individuals with similar kind[s] of profiles have this kind

of propensity.

‘‘[The Father’s Counsel]: That’s not what it says in this. It’s under personality, so—

‘‘[Franklin]: Right.

‘‘[The Father’s Counsel]: It does not say based on the data that this is—

‘‘[Franklin]: No. It does say that. It says the results. If you look under

it, that says he completed a personality assessment comprised of various

instruments. Under that heading, all the data [are] related to those instruments. It’s when you [get] to the summary questions where you start making

interpretation[s] of what the data [are] indicating. So, what you are seeing

on the personality and what you are seeing under the IQ score [are] data.

For example, if you look at the last paragraph, it says domains for aggression

are indicative of a short fuse. This is just data information.

‘‘[The Father’s Counsel]: You also say . . . [the father] scored in the

clinically relevant range for paranoia. He is hypervigilant and closely monitors his environment for evidence that others are out to harm him. Now,

that’s based on a standardized test?

‘‘[Franklin]: That’s based again—I want to be clear. This is based on

standardized tests, indicates that individuals with similar profiles have this

propensity. Now, having said that, when you go to the interpretive part, in

the summary questions . . . I’m not talking about paranoia. I’m not talking

about these issues. Now, what I am talking about when you look at this,

you see how it manifests itself. So, he can be overly suspicious. Sometimes

he has problems with interpersonal relationships. But there is certainly no

evidence of [a] psychiatric disorder or paranoia.’’

6

In the interpretative section of his report, Franklin repeated verbatim

much of the propensity data drawn from the test results, thereby suggesting

that the father actually exhibited such propensities in his everyday life. For

example, Franklin repeated in the interpretive section that ‘‘there is evidence

of prominent paranoia which does not rise to a level of delusion.’’ He also

concluded, on the basis of the propensity data: ‘‘[The father] is hypervigilant

and monitors his environment for evidence that others are out to harm him.

This may often result in some level of hostility and mistrust of others.

Anxiety and mood dysregulation are not debilitating, however, they are

likely to impact on the quality of his relationships with others as he typically

is hypervigilant, may [question] the motives of others and is highly suspicious

with negative consequences.’’ When cross-examined on these interpretive

statements, however, Franklin stated: ‘‘There is nothing definitive in the

record that suggests that he will do that. But the data [suggest] that people

with this type of profile may do that.’’ Franklin later added, when the

father’s counsel persisted by asking whether the statement on hostility was

speculative: ‘‘Right. That’s a speculation in that particular response.’’

7 The four documents prepared before the initial specific steps were issued

to the father consisted of: (1) ‘‘Summary of Facts Substantiating Neglect,’’

dated August 11, 2010, prepared by Janet Feliciano, social worker;(2)‘‘Social

Study for Superior Court for Juvenile Matters,’’ dated October 4, 2010, prepared by Stephanie Duncan, social worker; (3) ‘‘Status Report,’’ dated

November 3, 2010, prepared by Duncan; and (4) ‘‘Social Worker Affidavit,’’

dated November 19, 2010, prepared by Duncan.

8 The four documents prepared between thirteen and twenty-two months

before Franklin interviewed the father consisted of:(1)‘‘Addendum to Social

Study for Superior Court for Juvenile Matters,’’ dated January 5, 2011, pre-
pared by Stephanie Duncan, social worker; (2) ‘‘Status Report,’’ dated April

18, 2011, prepared by Yolanda M. Leon, social worker; (3) ‘‘Status Report,’’

dated July 6, 2011, prepared by Leon; and (4) ‘‘Study in Support of Motion

to Review Permanency Plan,’’ dated August 11, 2011, prepared by Leon.

9 The remaining three documents were: (1) ‘‘Summary of Facts to Substantiate Petition for Termination of Parental Rights,’’ dated November 23, 2011,

prepared by Yolanda M. Leon, social worker; (2) ‘‘Social Study in Support

of Termination of Parental Rights Petition,’’ dated December 30, 2011, prepared by Leon; and (3) ‘‘Study in Support of Motion to Review Permanency

Plan,’’ dated July 2, 2012, prepared by Leon.

10 Although it is unclear which names were on the list of authorized persons, Franklin could have sought permission from the department to speak

to Burgos, Frazier, Sargis and Thomas, all of whose names appeared in the

department documents and who were listed as collateral data sources, in

order to obtain additional or more updated information.

11 Burgos testified that she had conducted the assessment ‘‘a couple of

years ago, give or take,’’ but the trial court indicated in its memorandum

of decision that the assessment had been conducted in September, 2010.

12 The majority claims that I ignore testimony that strongly supports the

trial court’s conclusions, including testimony that the father refused to

submit to a hair test, refused to have a parental aide during his visitations

with Shane, and refused a psychiatric evaluation to determine his need for

medication. To the contrary, I not only recognize this testimony, but explain

why, when considered together with all of the other evidence, it does not

satisfy the standard that ‘‘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’’ determination that the father failed to achieve the level of rehabilitation required

to reunify with Shane. (Emphasis added.) In re Soncheray H., supra, 42

Conn. App. 668. As for Frazier’s testimony that the father appeared to be

underthe influence of marijuana during one ortwo of his counseling sessions

in early 2012, this testimony is of questionable value. When further pressed,

Frazier testified that the father denied being under the influence, there was

no proof that he was under the influence, he was ‘‘lucid’’ and ‘‘able to

articulate’’ during the session or sessions and, therefore, that Frazier could

not be sure that the father in fact was under the influence. The majority

thus overstates the value of this testimony, especially given the gravity of

a parental rights termination proceeding.

13 Because I would reverse the trial court’s judgment on this evidentiary

ground, I would not reach the issues of whether the trial court’s findings

fell within the scope of the court-ordered specific steps and whether the

court was required to inform the father that his refusal to submit to a hair

follicle test could result in an adverse inference that he was continuing to

engage in substance abuse.