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IN RE BRIAN T., JR.âCONCURRENCE
ROBINSON, J., concurring. I agree with the majority
that the trial courtâs judgment should be affirmed on
the basis of its finding that the respondent, Brian T.,
Sr., denied his minor child, Brian T., Jr., the care, guidance and control necessary for the childâs well-being.
I further agree with the majority that proof of one
ground is sufficient to terminate parental rights; see In
re Brea B., 75 Conn. App. 466, 473, 816 A.2d 707 (2003);
and, because of that principle, I ordinarily would not
address the respondentâs claims regarding abandonment, failure to rehabilitate and the lack of an ongoing
parent-child relationship, other statutory grounds on
which the trial court terminated his parental rights.
Nevertheless, I write separately to express my concerns
regarding the use of failure to rehabilitate as a basis to
terminate the respondentâs parental rights, as it was
done in this matter. Specifically, I believe there should
be symmetry between the termination of parental rights
procedure that was followed in this matter and the
procedure under the provisions of General Statutes
§ 17a-112 (j) (3) (B). When a child has been adjudicated
neglected or uncared for, the court should order specific steps for the parent to take to facilitate the childâs
return to the parent. No specific steps were ordered
for the respondent in this case. Further, I believe that
in determining whether a parent has achieved a degree
of personal rehabilitation such that he could assume a
responsible position in the childâs life within a reasonable time, a court should focus on the time period subsequent to when a neglect proceeding was conducted.
As I noted in the matter of In re Jason R., 129 Conn.
App. 746, 774, 23 A.3d 18 (Robinson, J., dissenting),
cert. granted, 302 Conn. 924, 28 A.3d 339 (2011), the
termination of an individualâs parental rights is one of
the most drastic actions that a state must take against
its citizens. ââThe termination of parental rights is
defined as the complete severance by court order of the
legal relationship, with all its rights and responsibilities,
between the child and his parent . . . . It is a most
serious and sensitive judicial action. . . . Although
that ultimate interference by the state in the parentchild relationship may be required under certain circumstances, the natural rights of parents in their children undeniably warrants deference and, absent a
powerful countervailing interest, protection.ââ (Internal
quotation marks omitted.) Id. Accordingly, it is through
this judicial lens that this court must thoroughly review
the termination of an individualâs parental rights.
General Statutes § 46b-129 (a) provides that an interested party may file in the Superior Court a petition
stating that a child has been neglected, uncared for
or abused. Section § 46b-129 (j) provides that upon a
finding that a child is uncared for, neglected or abused,
a court may commit that child to the custody of the
commissioner of children and families, or vest legal
guardianship of the child in someone other than the
parent. Section 46b-129 (j) also provides that ââ[t]he
court shall order specific steps that the parent must
take to facilitate the return of the child or youth to the
custody of such parent . . . .ââ (Emphasis added.)
Under General Statutes § 45a-717 (g) (2) (D),1 a Probate Court may approve a petition terminating the
parental rights of an individual if it finds upon clear
and convincing evidence that ââthe parent of a child who
(i) has been found by the Superior Court or the Probate
Court to have been neglected or uncared for in a prior
proceeding, or (ii) is found to be neglected or uncared
for and has been in the custody of the commissioner
for at least fifteen months and such parent 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 . . . .ââ
Generally, a Superior Court has sole jurisdiction
under § 46b-129 to determine, pursuant to that section,
if a child has been neglected, and to order specific steps
for the parent to take to facilitate the childâs return to
the parent. In re Juvenile Appeal (85-BC), 195 Conn.
344, 366, 488 A.2d 790 (1985). It appears from the record
that no petition alleging neglect was filed pursuant to
§ 46b-129 (a). It appears, rather, that the Probate Court
determined that the child had been neglected and
uncared for in deciding whether to remove the respondent and the childâs mother, Nicole G., as guardians of
the child. The Probate Court, however, did not order
specific steps for the respondent to take in order to
facilitate the childâs return to the respondent.
This court has concluded that when termination of
parental rights is sought under § 17a-112 (j) (3) (B), a
failure to order specific steps under § 46b-129 (j) would
preclude termination for failure to achieve personal
rehabilitation. In re Justice V., 111 Conn. App. 500, 510,
959 A.2d 1063 (2008), cert. denied, 290 Conn. 911, 964
A.2d 545 (2009). In the matter of In re Justice V., after
a finding of child neglect, the commissioner of children
and families sought to terminate the motherâs parental
rights on the basis of abandonment and failure to rehabilitate. Id., 504 n.4. The mother claimed that when the
child was adjudicated neglected, the court failed to
provide her with specific steps pursuant to § 46b-129
(j). Id., 505. This court noted that § 46b-129 (j) requires
specific steps be provided to the parent and that ââ[p]ersonal rehabilitation, therefore, is to be determined, in
part, by compliance with those specific steps, which
give the parent fair warning of what is required . . .
to be reunited with the child.ââ (Citation omitted; emphasis added; internal quotation marks omitted.) Id., 507.
The court concluded that ââgiven the requirement of
§ 17a-112 (j) (3) (B), a failure to order specific steps
would preclude termination for a failure to achieve
sufficient personal rehabilitationââ but that because
parental rights were properly terminated on the ground
of abandonment, the trial courtâs error did not result
in manifest injustice. Id., 510.
I believe that parental rights should not be terminated
under § 45a-717 (g) (2) (D), for failure to rehabilitate,
when specific steps were not ordered for the parent.
Although the Probate Court did not find that the child
was neglected or uncared for under § 46b-129, and, thus,
arguably was not required to provide specific steps
for the respondent, fairness dictates that in order to
terminate parental rights due to a failure to rehabilitate,
specific steps should be ordered for a parent whose
child has been found neglected or uncared for. The
court provides specific steps to a parent to apprise that
individual of the steps that will assist the parent to be
reunited with the child. If no steps are provided to a
parent, that parent will not be aware of the benchmarks
he or she should strive to meet. While it is true that a
courtâs determination regarding whether a parent has
achieved personal rehabilitation can take into account
more than whether that individual has met the specific
steps provided to the individual, the specific steps still
act as a guide to parents seeking to reunite their families. See In re Allison G., 276 Conn. 146, 161, 883 A.2d
1226 (2005) (ââ[a]lthough the specific steps provide a
benchmark by which the court measures whether either
reunification or termination of parental rights is appropriate, the court necessarily will consider the underlying [neglect] adjudication and the attendant findingsââ).
The specific steps are intricately intertwined with the
failure to rehabilitate, as indicated by the statutory language in all three of the relevant statutory provisions.
Accordingly, I believe that in order to terminate parental
rights on the basis of a failure to rehabilitate, that parent
should be provided with specific steps to take to facilitate the return of the child. As the respondent was not
provided with specific steps, I find it troubling that his
parental rights were terminated on the basis of a failure
to rehabilitate.
Furthermore, I believe that in determining whether
a parent has failed to rehabilitate, a court should focus
on the actions of the parent because the child was
found to have been neglected or uncared for. ââ[T]he
adjudicatory determination to be made by the trial court
is whether the parent of a child who has been found
by the [S]uperior [C]ourt to have been neglected [or]
uncared for in a prior proceeding 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.
. . . In conducting this inquiry, the trial court must
analyze the respondentâs rehabilitative status as it
relates to the needs of the particular child . . . . The
trial court must also determine whether the prospects
for rehabilitation can be realized within a reasonable
time given the age and needs of the child. . . .
ââAlthough the standard is not full rehabilitation, the
parent must show more than any rehabilitation. . . .
Successful completion of the petitionerâs expressly
articulated expectations is not sufficient to defeat the
petitionerâs claim that the parent has not achieved sufficient rehabilitation. . . . [I]n assessing rehabilitation,
the critical issue is not whether the parent has improved
[her] ability to manage [her] own life, but rather whether
[she] has gained the ability to care for the particular
needs of the child at issue. . . . Thus, even if a parent
has made successful strides in her ability to manage
her life and may have achieved a level of stability within
her limitations, such improvements, although commendable, are not dispositive on the issue of whether,
within a reasonable period of time, she could assume
a responsible position in the life of her child.ââ (Citations
omitted; internal quotation marks omitted.) In re Victoria B., 79 Conn. App. 245, 254â55, 829 A.2d 855 (2003).
The language of § 45a-717 (g) (2) (D) provides that
parental rights may be terminated when a child has
been adjudged neglected and uncared for and the parent
has ââfailed 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 . . . .ââ On the basis of this language,
it appears that the court should examine the actions of
the parent since the neglect proceeding in determining
whether the parent has failed to rehabilitate. See In re
Hector L., 53 Conn. App. 359, 367, 730 A.2d 106 (1999)
(ââ[a]t the adjudicatory phase of the termination hearing,
the ultimate issue faced by the trial court was whether
the respondent was better able to resume the responsibilities of parenting at the time of filing the termination
petition than he had been at the time of the childrenâs
commitmentââ). Although a court may consider events
that preceded the finding of neglect, such consideration
should only be in the context of determining whether
such individual has taken steps toward rehabilitation.
See In re Vincent D., 65 Conn. App. 658, 670, 783 A.2d
534 (2001) (ââ[i]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 departmentââ).
Termination of parental rights on the ground of failure
to rehabilitate essentially means that since the time
the child was adjudged neglected or uncared for, the
respondent has not demonstrated a change in his or
her life that is sufficient to allow him or her to maintain
parental rights.
In reaching its conclusion that the respondentâs
parental rights should be terminated on the ground
of a failure to rehabilitate, the court found that the
ââ[respondent] had eight years during which he might
have been available to assume a âresponsible position
in [the] [c]hildâs life.â During those years, he neither
made himself available as a resource for [the] [m]other
or [the] [c]hild [n]or significantly contributed to the
care and maintenance of [the] [c]hild. Furthermore,
he has demonstrated resentment of the role that [the
maternal grandparents] have played in their care and
nurture of [the] [c]hild. [The] [c]hild is closely bonded
and fully committed to his maternal grandparents, his
[m]other and [a]unt. His guardians have supported his
relationship with his paternal grandparents but reserve
their judgment as to whether [the respondent] is committed to acceptance of the nature of his future role in
[the] [c]hildâs life. He carries the heavy burden of proving to [the maternal grandparents] that his life has
changed and he can play a positive role in his sonâs
development. He must recognize that [the maternal
grandparents] will be making the decision in [the]
[c]hildâs life. The court finds by clear and convincing
evidence that [the respondent] has failed to rehabilitate
over the first seven years of [the] [c]hildâs life and that
the age and needs of [the] [c]hild require that [the maternal grandparents] continue in the parental role in which
they have served.ââ (Emphasis added.)
The courtâs primary reason for terminating the
respondentâs parental rights on the basis of a failure to
rehabilitate was that for the first seven years of the
childâs life, the respondent failed to assume a responsible position. The court should have asked whether the
respondent had achieved a degree of personal rehabilitation since the finding that the child was neglected
and uncared for, as would encourage the belief that
in a reasonable amount of time he could assume a
responsible position in his sonâs life. I am concerned
that the court simply grouped the first seven years of
the childâs life together in determining that the respondent has failed to rehabilitate. The child was adjudicated neglected or uncared for in January, 2005. I
believe that the court should have primarily focused
on the years since that proceeding to determine whether
the respondent had taken steps toward rehabilitation
so that he could assume a responsible position in the
childâs life.2 Accordingly, I respectfully concur.
1
As the majority noted, the statutory language set in § 45a-717 (g) (2) (D)
and § 17a-112 (j) (3) (B) is identical; thus, prior analysis under § 17a-112 (j)
(3) (B) will be used to analyze § 45a-717 (g) (2) (D).
2
For example, the respondent completed a Tier II Living in Balance class
and an eleven week Embracing Fatherhood program in 2006. In addition,
the respondent completed an eight week anger management program and
a nine week active parenting now program in 2009 after the petition was filed.
The court, however, noted none of these accomplishments in its decision to
terminate parental rights on the basis of a failure to rehabilitate.
