In re Elijah J.
In re Elijah J.
Opinion of the Court
Opinion
In this case, the respondent father
The respondent claims on appeal that the court erred in reaching the foregoing conclusions in two ways. First, he argues that the court erroneously based its conclusions in material part upon his election to stand silent at the plea hearing in the neglect proceeding, which it improperly treated as a tacit admission of the truth of
The commissioner disputes both of the respondent’s claims. As for the first claim — challenging the court’s alleged treatment of the respondent’s silence at the plea hearing where his children were adjudged to be neglected as a basis for making its essential findings of fact against him in this case — the commissioner asserts that the court’s only reference to the respondent’s silence was a technically accurate description of the proceedings before the neglect court that merely set the stage for, but did not answer, its ultimate inquiry as to the success or failure of the respondent’s efforts to achieve personal rehabilitation as a parent following the neglect adjudications. Even, then, if the court’s description of the respondent’s silence at the plea hearing can be understood to have misdescribed such silence as an admission of the truth of the allegations of the neglect petition, the commissioner argues that that misdescription was not a harmful error because it had no effect upon the outcome of this case.
THE TRIAL COURT’S DECISION
In reaching its decision, the trial court made the following relevant findings as to the historical and procedural facts and circumstances that led to the institution of the present termination proceedings. “On December 28, 2007, shortly after his [son, Elijah’s] birth, [the commissioner of the department of children and families (commissioner)] obtained an order of temporary custody (OTC) for Elijah . . . and filed a neglect petition alleging that he was denied proper care and attention, physically, educationally, emotionally or morally, and/ or that he was permitted to five under conditions, circumstances or associations injurious to his well-being while in the custody of his parents. Among other things, the [commissioner] alleged that Linda J. then: had untreated ‘extensive mental health issues’; had been diagnosed with bipolar disorder; had a history of numerous inpatient admissions for mental health treatment; had tested positive for marijuana and cocaine so that Elijah had also tested positive for cocaine when he was bom; had a history of domestic violence with [the respondent]; had been arrested for domestic violence herself; and had failed to attend anger management.
“On March 11, 2008, the court . . . confirmed that [the respondent] was Elijah’s biological father, and ordered the child’s commitment to [the commissioner] upon accepting the respondent-parents’joint no contest pleas to the sole ground of conditions injuri[ous], whereby they effectively acknowledged that the court would rely upon the truth of [the commissioner’s] allegations. On July 15, 2008, the court . . . revoked that commitment, and ordered Elijah returned to his parents’ custody with six months of protective supervision. The court . . . terminated protective supervision on December 10, 2008.
“[The respondent] was arrested on March 10, 2010 and commenced a one year term of incarceration. On August 27, 2010, Linda J. gave birth to their daughter, Jasmine. On September 8, 2010, [the commissioner] imposed a ninety-six hour hold upon both [Jasmine] and Elijah. The children have remained in [the commissioner’s] custody . . . since [that date].
“On September 10, 2010, the court . . . granted [the commissioner’s] ex parte application for an OTC and issued specific steps for each parent and [the department of children and families (department)] to follow, having found that both children were in immediate physical danger from their surroundings and that it was contrary to their welfare to remain living with Linda J. On that date, [the commissioner] filed a second neglect petition for Elijah, and a first petition for Jasmine, alleging that the children were being denied proper care and attention, physically, educationally, emotionally or morally, and/or that they were then being permitted to
“On September 17, 2010, the court (.Eschuk, J.) sustained the OTC upon the parties’ agreement and found that [the respondent] was Jasmine’s legal father. The OTC steps were not modified and thus remained in effect. On December 22, 2010, the court (Eschuk, J.) accepted Linda J.’s nolo contendere plea to the neglect petitions that were amended to reflect the sole ground of denial of proper care as to each child. Consistent with his incarceration at the time of plea, and his status as a noncustodial parent, [the respondent] remained silent. Both children were adjudicated neglected. In this context, Linda J.’s no contest plea and [the respondent’s] election to stand silent indicated their functional acknowledgment of the truth of [the commissioner’s]
“In March, 2011, [the respondent] was released from incarceration and commenced a two year period of probation supervision. On June 9, 2011, [the commissioner] filed the . . . [termination of parental rights] petitions, alleging that the department had made reasonable efforts to reunify the children with each parent, and that each parent had failed to achieve statutory rehabilitation.” (Citations omitted.)
Following a trial on the termination petitions, at which testimony was presented from several witnesses,
“On June 24, 2007, [the respondent] was arrested and charged with violating the outstanding [criminal protective order] prohibiting him from contact with Linda J. He was again held in lieu of bond, and became subject to a new [criminal protective order] that prohibited him from engaging in violence with Linda J. from September 18 through November 30, 2007. On November 30, 2007, [the respondent] was found guilty of violating a criminal protective order, and was sentenced to two years of incarceration, suspended, with three years of probation. . . .
“Elijah was bom to [the respondent] and Linda J. on December 25, 2007. On March 10, 2010, when Elijah was two years old, [the respondent] was charged with possession of illegal drugs with intent to sell, was incarcerated in lieu of bond, and was thus separated from his son. On June 28, 2010, [the respondent] was found guilty, and was sentenced to three years of incarceration, suspended after he served one year, with two years of probation. . . .
“Jasmine was bom on August 27, 2010, while [the respondent] was incarcerated. On September 10, 2010, when she was taken into [the] custody [of the commissioner] along with Elijah, the court ordered [the respondent] to follow specific steps that were reaffirmed at the children’s commitment on December 22, 2010. The steps established the [respondent’s] rehabilitative goals: ‘(1) Demonstrate an understanding of the stages of child development. (2) Acquire and utilize age appropriate parenting skills. (3) Effectively manage personal
“On March 8, 2011, [the respondent] was discharged to probation. Soon thereafter, he visited the [department] office and discussed the specific steps, and the services that would be provided by the department, such as visitation. He also discussed the services that [the department] would coordinate . . . such as visitation, mental health and substance abuse services. . . .
“On March 18, 2011, a mere ten days after his release from prison, [the respondent] became involved in a physical altercation with Anthony M., with whom Linda J. had been romantically involved while the [respondent] was incarcerated. During this incident, [the respondent] suffered a stab wound on the back left side of his body, and a punctured lung. At the hospital, he received care and was charged with disorderly conduct. . . .
“Referred by [the department], [the respondent] completed a twelve session fatherhood workshop at the Fatherhood Initiative during the spring and summer of 2011. This wraparound program included parenting
“Referred by probation, [the respondent] was evaluated at the [Morris Foundation] in May, 2011, for mental health and substance abuse issues; he was diagnosed with anxiety, depressive disorder, and a history of abusing illegal drugs. A psychiatric muse practitioner who performed regularly scheduled consultations for [the respondent] starting in May, 2011, so he was prescribed medication for treatment of the major depression, related sleep disturbance, and the co-occurring addiction issues that were noted by the [Morris Foundation] staff. The [respondent] . . . takes these medications in addition to the narcotics that are prescribed by a family health center for his back and leg pain. . . .
“On September 6, 2011, [the respondent] violated the prohibition against domestic violence and criminal conduct established by the specific steps and the conditions of his probation, when he was charged with breach of peace involving Linda J. Held in lieu of bond, the court . . . imposed a [criminal protective order] that prohibited [the respondent] from contact with Linda J. [The department] learned of [the respondent’s] incarceration on September 8,2011; he was released to the community in early October, 2011. On November 15, 2011, [when the respondent] was convicted of breach of peace [and] sentenced to an unconditional discharge, the extant [criminal protective order] expired on its own terms.
“In conjunction with his medication management, the [Morris Foundation] staff referred [the respondent] to group therapy in August, 2011, so he could participate in a men-only, psycho-educational, mental health support group that was designed to help him develop coping strategies to deal with his mental health symptoms. [The
“[The respondent] has not maintained stable housing. From time to time, he has lived with Linda J. However, by September 13, 2011, after his arrest for domestic violence, when he had already completed the Fatherhood Initiative program and had undergone several months of treatment at the [Morris Foundation], [the respondent] was homeless. He had no housing resources available for himself or for the children, either.” (Citations omitted.)
With- that factual backdrop, the court turned to its analysis of the department’s reunification efforts with respect to the respondent. “Throughout the child protection proceedings, [the department] provided [the respondent] with: communication with service providers to check on progress toward goals; case management; transfer conferences and case supervision; and referrals for necessary rehabilitative treatment. . . . While he was incarcerated from March, 2010, through March, 2011, [the department] had phone contact with [the respondent] to provide information concerning [the department’s] role with the family; and to answer questions concerning the department’s expectations and services, and the status of the children; and to coordinate its rehabilitation services with those available through probation upon his release. [The department] specifically offered to investigate housing resources available for [the respondent], other than impermanent shelters, to resolve his recurrent homelessness and to assist in compliance with the specific steps’ housing criteria. . . . In 2011, when he was at liberty, [the department]
“The department appropriately relied upon probation’s referral to the [Morris Foundation] for [the respondent’s] mental health and substance abuse treatment, as this formed an inherent part of [the department’s] extension of this [respondent’s] rehabilitation and reunification efforts. ... As previously found, [the respondent] was evaluated at the [Morris Foundation] following his March, 2011 release from incarceration . . . received medication therapy there, was referred to group counseling, and subsequently to individual counseling. Although he has missed some medication and counseling visits, due in part to his September, 2011 incarceration, [the respondent] has been largely compliant with the treatment schedule set up for him at [the Morris Foundation]. . . .
“[The respondent’s] experience with visitation clearly and convincingly illustrates both [the department’s] reasonable extension of reunification efforts, and his inability or unwillingness to benefit from this service. [The department] arranged supervised visitation for [the respondent] while his children were in [the commissioner’s] custody, and provided transportation to and from visits; when the [respondent] . . . was incarcerated, [the department] was unable to facilitate his access to reunification services other than visits. . . . As of June, 2011, when [the respondent] had commenced his mental health and substance abuse treatment at the [Morris Foundation], [the department]
“During the winter of 2012, after [the respondent] lost his employment, but while he continue [d] to have access to mental health treatment at the [Morris Foundation], and when he was more available for visits, [the department] provided a parenting coach at [the respondent’s] visits as a reasonable effort at improving his parenting behaviors. Although he attended visits more regularly, [the respondent] remained remote, most often merely observing his children’s behavior during these sessions. Without interacting, [the respondent] was largely unresponsive to Elijah, although he was somewhat attentive to baby Jasmine. Overall, besides delivering a prompted greeting, or assisting Jasmine when she needed to have her coat put on at the end of visits, [the respondent] demonstrated little interest in or ability to perform even minimal parenting functions such as [joining in] his son’s efforts at play activities or conversation. . . . [The respondent’s] conduct indicates that despite [the department’s] reasonable efforts,
“Composite reunification efforts have yielded no progress in [the respondent’s] ability to cope with his mental health symptoms or in his personal functioning. Even with his individual therapist at [the Morris Foundation], he is overly guarded, and must be prompted to answer the counselor’s questions, demonstrating the same remoteness and detachment in counseling sessions that he exhibits in his poor quality visitation sessions with the children. [The respondent’s] flat affect, depression, sadness and difficulty sleeping persist notwithstanding [the Morris Foundation’s] multimodal treatment; in February, 2012, [the respondent] admitted that he had a significant amount of anger toward people, and that he recently had nightmares about hurting people. These recent statements concerned the [Morris Foundation] counselor, especially in view of [the respondent’s] violent criminal history; they concern the court in view of the [respondent’s] ostensible desire to serve as a custodian for his children. Altogether, [the respondent’s] . . . experiences [at the Morris Foundation] clearly indicate that this [respondent] has, as yet, been unable to achieve measurable benefit from mental health services. . . .
“[The department’s] referral to the Fatherhood Initiative was timely and highly relevant for [the respondent], who required assistance in learning to fulfill the minimal aspects of parenting, such as learning to demonstrate affection and compassion, self-care and financial stability, identification of community resources, and self-control. Training in each of these areas, and more, [was] available through the Fatherhood Initiative program. . . . [The respondent], however, failed to acquire the skills promote [d] by this program, as illustrated by his September, 2011 arrest, his failure to maintain employment or stable housing, and his conduct during those
“In sum, notwithstanding the department’s efforts and the efforts of probation, the clear and convincing evidence establishes that [the respondent] cannot or will not acquire benefit from any aspect of reunification services within the meaning of § 17a-112 (j) (1). Under the totality of the circumstances, the clear and convincing evidence thus establishes that [the department] has met its burden of proving the reunification element of [the respondent’s] [termination] petition[s].” (Citations omitted.)
The court then turned as follows to the issue of whether the department had proven that the respondent had failed to achieve sufficient personal rehabilitation, as required by § 17a-112 (j) (3) (B) (ii): “On December 22, 2010, when he stood silent to the no contest plea Linda J. tendered in response to [the department’s] amended neglect petitions, [the respondent] tacitly authorized the court to accept as true, and to act upon, the facts as alleged by [the department] concerning: his unlawful conduct, which led to incarceration and separation from his children; his inability or unwillingness to provide financial support for the children; and the fact that he could not provide a stable home environment that was appropriate for or able to meet the developmental needs of either Elijah or Jasmine. . . . These factors, identified by [the department] in support of its underlying neglect petition[s] and addressed by the specific steps, effectively formed the basis for the court’s adjudication of neglect, and constituted the causes for the children’s commitment on that date. . . . The clear and convincing evidence establishes that these factors have never been corrected, and confirms that the department has met its burden of proving that
“The specific steps originally imposed with the OTC, and reimposed with the neglect adjudication, served as guides for [the respondent’s] rehabilitation. The steps warned the [respondent] that if he did not adhere to the court’s orders, a [termination] petition could be filed and the children could be placed for adoption. The steps further reminded [the respondent] that he should contact [his] lawyer and/or [the department’s social] worker if [he] need[ed] help in reaching any of these steps. . . .
“There is no evidence in this case from which the court could reasonably conclude that [the respondent] has achieved a level of rehabilitation that would reasonably encourage the belief that, at any time in the foreseeable future, he could serve as a safe, consistent, reliable and effective parent for Elijah and Jasmine. To the contrary, although he has complied with some of the specific steps, the clear and convincing evidence reflects that [the respondent] has not yet overcome his predilection for impulsive, unlawful and violent conduct; his transient lifestyle; his inability or unwillingness to secure financial support for the children; and his antisocial demeanor which renders him remote, uncommunicative, detached from, and unresponsive to the needs of his very young children. As such, he has not achieved personal rehabilitation.
“[The respondent’s] failure to correct the causes of commitment, and his failure to achieve rehabilitation, is evident through his long-standing pattern of criminal conduct, and his violation of the specific steps’ prohibition [of] involvement in new criminal acts. Because [the respondent] was arrested in March, 2010, charged with
“[The respondent]’s failure to achieve personal rehabilitation is further apparent in his failure to meet the specific steps’ requirement that he visit his children as often as [the department] permitted. While he visited consistently in June, July and August of 2011, that compliance was short-lived. [The respondent’s self-created incarceration in September, 2011, prevented him from visiting during that month. As found above, although [the department] again made twice weekly visits available to [the respondent] after his October 4, 2011 release, and although the department proffered very
“[The respondent’s] conduct, as a whole, is sufficient to support the conclusion that he is either indifferent to his children’s well-being, incapable of oral communication or play interaction with them, and/or unable to provide secure, consistent and effective management of their behavior, even in a controlled environment. When visits did occur, although he appropriately greeted them, [the respondent] otherwise had limited interaction with either child, sometimes holding Jasmine, but not responding to Elijah’s efforts at obtaining attention from his father. Despite his protests that he has [a] valid interest in serving as a parent to his children, [the respondent’s] demeanor and comportment [belie] this position. ... He perceives his role, during visits, as that of an observer, not as a parent who willingly and appropriately interacts with, instructs, and shows love and affection for his children. . . . During contact with Elijah and Jasmine, [the respondent] did
“[The respondent’s] failure to comply with other significant aspects of the court-ordered steps further clearly and convincingly establishes] his failure to achieve personal rehabilitation. For instance, he failed to promptly inform [the department] of his current address after his release from incarceration in March, 2011, causing a delay in the implementation of visits with the children. ... He has failed to maintain stable housing, sometimes living with Linda J., sometimes with a relative, and sometimes remaining homeless. ... He failed to comply with the steps’ obligation to inform [the department] of the names of individuals with whom he was living in the home he occupied in January, 2012, after he had lost his employment. . . . While the steps required [the respondent] to maintain employment, and while he claimed to be working under the table during the fall of 2011, there is insufficient evidence from which the court could reasonably conclude either that the [respondent] worked in any active manner or that he
“Moreover, despite the group counseling, individual therapy and medication management available to him at [the Morns Foundation] to address his diagnosed anxiety, depression, and sleep disturbances, [the respondent] has never achieved the goal of stable mental health that is implicit in the specific steps’ obligation that he [c]ooperate with service providers recommended for . . . mental health treatment. . . . The court fully credits the therapist’s conclusions that [the respondent] has made no progress, despite the passage of time, in coping with his symptoms, and that [the respondent] requires additional treatment [of] unspecified duration before he could reasonably be seen to have developed the skills necessary to improve his mental health status. . . . [The respondent] remains relatively expressionless at his individual [Morris Foundation] counseling sessions and does not voluntarily engage in productive conversation, essentially mimicking, in a therapeutic setting, the overly guarded affect he largely displays during visits with his children. The comments [the respondent] recently made to his therapist, indicating that he harbors anger against others and that he has had dreams about hurting people, raise ominous concerns for his ability to provide safe care and supervision for young Elijah and Jasmine, who are fully dependent on rehable adult caregivers to [whom] they can communicate their needs and from whom they can receive prompt support and attention in response.
“[The respondent’s] consistent pattern of criminal conduct, and his failure to improve his mental health status while under the multimodal care provided by the
“In determining that [the respondent] has not achieved statutory rehabilitation, the court acknowledges his compliance with some aspects of the specific steps. Despite his arrests in March, 2011, and in September, 2011, probation has not found him in violation of its conditions. ... He has attended mental health and/ or substance abuse evaluation and treatment, although he has not made any progress despite those services, as described above. [The respondent] completed the Fatherhood Initiative program with its parenting and
“Instead, this scant degree of compliance must be viewed . . . from the historical perspective related to [the respondent’s] continued poor judgment, inadequate parenting skills, and lack of commitment to the process of reunification with his children. . . . Elijah came into [the department’s] custody nearly immediately after his birth in late December, 2007; even if he lived with [the respondent] and Linda J. from July, 2008, to March, 2010, this child has been ... in foster care, and out of his father’s care, since the latter date. Jasmine has never been cared for by [the respondent]; this child has spent almost twenty-two months, nearly her entire young life, in [the] custody [of the commissioner] with her brother. Despite this long passage of time, despite his chance for reformation during his March, 2010 through March, 2011 prison term, despite his participation in the wraparound services tendered by the Fatherhood Initiative, and despite the flexible visitation sessions offered by [the department], [the respondent] has not yet improved his parenting skills. When he is with Elijah and Jasmine, his conduct and demeanor are detached and largely emotionally sterile, rendering him functionally unavailable to fulfill a parenting role even when he is in the children’s physical presence. [The respondent] cannot provide the children with realistic opportunities for the psychological attachment that is a requisite to serving in a parental role. He has not
“[The respondent’s] judgment remains impaired notwithstanding services, and [the respondent’s] life choices support the conclusion that he presents an unsafe parenting resource for Elijah and Jasmine. [The respondent] has admitted that he wants to return to Linda J., despite the dangerous nature of their relationship, which has been punctuated by domestic violence. . . . Resuming a life with Linda J. would expose [the respondent], and any children in his care, to her unstable, chaotic lifestyle, and to the violence that has consistently marred the [parents’] relationship; to place the children in such an environment would be detrimental to their physical safety and to their overall well-being. [The respondent] has not achieved the capacity to make appropriate decisions concerning his own life; concomitantly, he lacks the essential ability to make critical life decisions that would meet his children’s best interests, safety or security. . . .
“Notwithstanding the services to which [the department] has referred [the respondent], and despite his opportunity for rehabilitation through the process of incarceration and probation, he is not able to fulfill a constructive and useful role as a parent for either child. ... In its entirety, the clear and convincing evidence establishes that the [respondent] . . . cannot meet the needs of either of his children within a reasonably foreseeable time, given their ages and needs for an appropriate environment in which to grow and develop in a healthy manner. Because the level of rehabilitation [the respondent] 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 children’s lives, [the department] has proved the § 17a-112 (j) (3) (B) [(ii) rehabilitation] element alleged
After making the required findings delineated in § 17a-112 (k),
II
RESPONDENT’S SILENCE AT PLEA HEARING IN NEGLECT ADJUDICATION
On appeal, the respondent first claims that the court improperly treated his election to stand silent at the plea hearing in his children’s neglect proceeding as a tacit admission of the truth of the allegations about him in the neglect petitions. He claims, more particularly, that the court committed reversible error when it made and relied upon the following findings of fact in support of its decision to terminate his parental rights: “On December 22, 2010, when he stood silent to the no contest plea Linda J. tendered in response to [the department’s] amended neglect petitions, [the respondent] tacitly authorized the court to accept as true, and to act upon, the facts as alleged by [the department] concerning: his unlawful conduct, which led to incarceration and separation from his children; his inability
The commissioner disputes the respondent’s claim on several grounds. First, she argues that the court’s challenged findings did not attribute evidentiary significance to the respondent’s election to stand silent at the plea hearing. Instead, she contends, the court’s description of the plea hearing accurately stated that, by electing to stand silent at that hearing, he in fact tacitly authorized the court to adjudge his children neglected based solely upon the commissioner’s pleaded allegations even though he, as the children’s noncustodial parent, never admitted them. Thus, claims the commissioner, the court’s description of the process by which the respondent’s children were adjudged to be neglected is completely accurate, for it does not even state that the respondent, by his silence, admitted the truth of the allegations pertaining to him.
Second, the commissioner argues that even if the court’s description of the process by which the respondent’s children were adjudged to be neglected can be
Practice Book § 35a-l establishes the general procedure to be followed at the plea hearing in any proceeding concerning a neglected, uncared for or dependent child or any proceeding for termination of parental rights.
The consequences of an express admission are well understood to be that the parent admits the truth of the facts alleged in the petition for all purposes and agrees to the entry of judgment with respect to his or her child on the basis of those admitted facts. Such an admission can be used against the admitting parent in any future proceeding to which the admission is legally relevant. By contrast, the consequences of a plea of nolo contendere, which is not based upon an express admission of the allegations of the petition, is that those allegations are tacitly admitted for the purpose of the proceeding where the plea is entered, with the understanding that judgment may enter against the pleader with respect to his children on the basis of such allegations. Although a judgment entered against a party on the basis of a plea of nolo contendere can later be used
The only exception to the previously described plea and waiver procedure in proceedings subject to Practice Book, 2011, § 35a-l (b) is that established for certain noncustodial parents by the final sentence of that rule, which reads as follows: “Where appropriate, the judicial authority may permit a noncustodial parent or guardian to stand silent as to the entry of an adjudication.” This provision does not condition the entry of an adjudication as to the child of a noncustodial parent who is permitted to stand silent upon a waiver by that parent of his or her right to trial, or upon a determination that such parent understands the consequences of his or her decision to stand silent. The threshold question presented by the respondent’s first claim on appeal is whether those consequences, like those of an express admission, may lawfully include the later use of the parent’s silence at the custodial parent’s plea proceeding as a tacit admission of the truth of allegations as to which he stood silent, as the respondent claims to have happened in this case. Because resolution of this issue requires us to interpret Practice Book § 35a-l (b), the issue presents us with a question of law over which our review is plenary. Wiseman v. Armstrong, 295 Conn. 94, 99, 989 A.2d 1027 (2010).
Although there is no case law in this state that specifically addresses the consequences for a noncustodial parent of electing to stand silent in a neglect proceeding pursuant to Practice Book § 35a-l (b), our Supreme Court’s analysis in In re Samantha C., 268 Conn. 614, 847 A.2d 883 (2004), is instructive on this issue. There, the court examined the issue of whether then existing
Notwithstanding the foregoing conclusion, the court in In re Samantha C. was careful to clarify the significant difference between drawing an adverse inference from a parent’s silence in the trial of a termination proceeding and treating such silence as a tacit admission of the allegations of the termination petition, as might be done upon the entry of a plea of nolo conten-dere. On that score, the court declared that “an. adverse inference,” unlike a tacit admission, “cannot supply proof of a material fact; it merely allows the fact finder to weigh facts already in evidence.” Id.
Finally, the court noted that the then-existing provisions of Practice Book, 2001, § 34-1 (a), expressly required the trial court to advise parent-respondents in termination proceedings of their right to silence in such proceedings. In light of that requirement, the court concluded that “if a trial court is inclined to draw an adverse inference against a parent for his or her failure to testify in a termination proceeding, it is incumbent upon the court to advise the parent accordingly.” Id., 666. Because the trial court in the case before it had not advised the respondents that their silence could later be construed adversely to them, the court in In re Samantha C. reversed the judgment against them and remanded the case for a new termination trial. Id., 675.
Against this background, the trial court’s finding with respect to the respondent’s election to remain silent at the plea hearing in his children’s neglect proceeding offered an accurate description of the respondent’s conduct at that hearing and of its practical consequences. Although the respondent, by his silence at that hearing, surely did not admit the allegations of the neglect petitions to which his children’s mother pleaded nolo con-tendere, he just as surely stood aside and allowed
The sole aspect of the trial court’s challenged finding that risked implying that the respondent, by his silence at the plea hearing, did more than merely stand aside and allow the court to enter judgment with respect to his children based upon the commissioner’s allegations was its statement that, by his silence, he “tacitly authorized the court” not only to “act upon” those allegations, but to “accept as true . . . the facts as alleged by [the department] concerning: his unlawful conduct, which led to incarceration and separation from his children; his inability or unwillingness to provide financial support for the children; and the fact that he could not provide a stable home environment that was appropriate for or able to meet the developmental needs of either Elijah or Jasmine.” (Emphasis added.) Such a statement can reasonably be understood to state that the respondent tacitly admitted the truth of those allegations, which in fact the respondent never did. Relying materially upon such a silence based finding as a basis for deciding any of the ultimate issues in a termination proceeding would constitute reversible error, because it would not only allow the noncustodial parent’s silence to be used as a basis for finding contested facts against him, but it would allow improper use of his silence against him in a different proceeding than that in which he stood silent, all without advance warning that those could be the consequences of his election.
Here, however, a close examination of the trial court’s detailed termination decision clearly demonstrates that the challenged finding played no role at all in the court’s resolution of the ultimate issues before it in this proceeding. Those ultimate issues, upon which the court’s termination decision depended, were: (1) whether or
Ill
SPECIFIC STEPS TO ACHIEVE PERSONAL REHABILITATION
The respondent also claims that the trial court improperly terminated his parental rights because the neglect court failed to order and provide specific steps for him to follow when his children were adjudged to
At oral argument before this court, counsel for the respondent acknowledged that if the specific steps previously issued to the respondent were reaffirmed at the December 22, 2010 plea hearing, then the statutory requirement that they issue following the children’s neglect adjudication was met. He contends, however, that the neglect court did not, in fact, reaffirm the steps on December 22, 2010. We disagree. On that date, after the neglect court entered the order of commitment, it directly addressed the respondent regarding the specific steps and warned him that “[f]ailure to comply with any of the steps would be used against you by the department of children and families ... if the matter comes to a termination hearing.”
The judgments are affirmed.
In this opinion the other judges concurred.
The parental rights of the mother, Linda J., also were terminated, but she has not appealed from those judgments and she is not a party to this appeal. We therefore refer in this opinion to the respondent father as the respondent.
The respondent also claims that the court’s findings that the department made reasonable efforts to reunify him with his children and that he was unable or unwilling to benefit from services provided by the department were clearly erroneous. On the basis of the extensive factual findings set forth by the court, accompanied by the citations to the evidence in the record that substantiated those findings, the respondent’s claim is without merit.
The court also heard testimony from various social workers, a police officer and a few of the respondent’s service providers.
The court also noted: “[The respondent] indicated that there were no relatives in Connecticut who could care for the children, and he declined to provide sufficient details about out-of-state resources to enable the department to examine other individuals, despite the steps’ requirement that he make such information available.”
General Statutes § 17a-112 (k) provides in relevant part: “[I]n determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered ... (2) whether the Department of Children and Families has made reasonable efforts to reunite the family ... (3) the terms of any applicable court order entered into and agreed upon ... (4) the feelings and emotional ties of the child with respect to the child’s parents ... (5) the age of the child; (6) the efforts the parent has made to adjust such parent’s circumstances, conduct, or conditions to make it in the best interest of the child to return such child home in the foreseeable future . . . and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child . . . .”
Practice Book § 35a-l provides: “(a) Notwithstanding any prior statements acknowledging responsibility, the judicial authority shall inquire whether the allegations of the petition are presently admitted or denied.
“(b) An admission to allegations or a written plea of nolo contendere signed by the respondent may be accepted by the judicial authority. Before accepting an admission or plea of nolo contendere, the judicial authority shall determine whether the right to trial has been waived, and that the parties understand the content and consequences of their admission or plea. If the allegations are admitted or the plea accepted, the judicial authority shall make its atjjudicatory finding as to the validity of the facts alleged in the petition and may proceed to a dispositional hearing. Where appropriate, the judicial authority may permit a noncustodial parent or guardian to stand silent as to the entry of an abdication.”
Practice Book, 2001, § 34-1 (f) provided: “Any child shall have the right to remain silent at any stage of the proceedings. No parent who is the subject of a petition shall be compelled to testify if the testimony might tend to incriminate in any criminal proceeding or to establish the validity of the facts alleged in the petition.”
Practice Book, 2001, § 34-1 (f) was repealed as of January 1, 2003.
Although the issue in In re Samantha C. arose in the context of the respondent parents’ failure to testify in a termination proceeding, versus a neglect proceeding as in the case at hand, the court’s reasoning is instructive because Practice Book, 2001, § 34-1 (f) applied to any stage of a child protection proceeding.
Practice Book § 35a-7A, effective January 1, 2009, provides: “If a party requests that the judicial authority draw an adverse inference from a parent’s or guardian’s failure to testify or the judicial authority intends to draw an adverse inference, either at the start of any trial or after the close of the petitioner’s case-in-chief, the judicial authority shall notify the parents or guardian that an adverse inference may be drawn from their failure to testify.”
Additionally, we note that on January 20, 2012, during the termination trial, the respondent reviewed the specific steps and the transcript of the December 22, 2010 hearing, agreed that he was present in court when those steps were ordered, and agreed to the admission of those steps as an exhibit in the termination trial.
Reference
- Full Case Name
- IN RE ELIJAH J.
- Cited By
- 1 case
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- Published