In re Juvenile Appeal (83-BC)

Shea, J.

The respondent in this action has appealed from the judgment terminating her parental rights in regard to her eleven year old son, T. The judgment relied npon two of the grounds set forth in General Statutes § 17-43a (a):2 “(2) *69 the parents have failed to achieve any such degree of personal rehabilitation as would reasonably encourage the belief that at some future date they could assume a responsible position in their child’s life; or (3) the parents, by reason of continuing physical or mental deficiency have, and for such period of time as will be detrimental to the best interest of the child, will be unable to provide him with the care, guidance and control necessary to his physical, educational, moral and emotional well-being . . . The respondent claims that there was insufficient evidence before the court to support the termination order on either basis cited by the court. We have concluded that the evidence does support the adjudicatory portion of the termination order on the second of those grounds, continuing mental deficiency, as provided in § 17-43a (a) (3). Because the grounds for termination under the relevant statute are listed in the alternative, this conclusion makes it unnecessary to address the trial court’s determination that the respondent had failed to achieve a sufficient degree of personal rehabilitation as provided in § 17-43a (a) (2). We find no error in the court’s interpretation and application of U7-43a (a) (3).

In rendering judgment, the court accepted the findings of the referee to whom the matter had been referred.3 Taking judicial notice of proceedings prior to the termination hearing, the referee found the following: When neglect proceedings were ini *70 tiated in 1974 the respondent, Mrs. S, as the result of the dissolution of her marriage, had legal and physical custody of her son T, aged three, her daughter B, aged ten, and her son D, aged eleven. T, subject of this proceeding, was removed from his mother and committed to the commissioner of children and youth services after an adjudication by the Juvenile Court that he had been physically abused by Mrs. S and denied adequate emotional nurture in her care. Mr. S, who had remarried, was unable to provide a home for the child at that time. In 1976 an application by Mrs. S for revocation of commitment was denied, the court having concluded that Mrs. S, limited by mental and emotional problems which had not measurably improved with regular therapeutic intervention, could not provide the level of parenting required to care adequately for T, a child with severe developmental problems.

On the basis of the evidence presented at the termination hearing, the referee made additional findings regarding both the child T and Mrs. S. T’s ability to relate consistently to his foster parents and psychiatric caseworker had improved since his commitment and he was functioning at a behavioral level which permitted him to be placed in a public school for the 1978-79 school year, rather than in the highly structured private school which he had attended for two previous years. Despite this progress, the court found that T, with his devel *71 opmental problems, had exhausted the mental and emotional resources of two sets of motivated and competent foster parents and was certain to bring a high degree of stress to any living situation. His conduct, characterized by rapid mood swings calculated to elicit retaliatory responses from an adult insensitive to his needs, required parents with above average insight and understanding, who could work in cooperation with professional assistance from outside agencies. T intermittently denied the existence of his biological parents, though he saw both of them with relative frequency. He displayed no deep emotional attachment to his mother, despite her biweekly visits with him. Nevertheless, when interviewed by the referee, he expressed a preference, if change were coming, for living with his mother.

Mrs. S was found to have continuing mental and emotional problems for which she had been receiving psychiatric treatment once a month at a hospital, prescribed medication, and biweekly home visits from a regional health nurse. She had, however, adequately provided physical care for her two older children within the constraint of a small income provided by disability and aid to dependent children grants. In considering the entire family structure, the referee accepted expert testimony that the adjustment of Mrs. S and her family was marginal and could be undermined easily by additional stress. The fourteen year old daughter B recently had been admitted to a hospital with strap-marks from a whipping Mrs. S had inflicted with a piece of belt when the child had refused to stop screaming after accidentally burning her arm while baking cookies. Since T’s commitment, Mrs. S had regularly arranged for visits on alternate Satur *72 days, either in the foster homes or currently at her own home. She was unable, however, to see any change in her son during his years of placement in foster homes and displayed no understanding of the difficulties she would face if T returned to her care.

The referee found that the ability of Mrs. S to provide parental care was limited by her continuing mental and emotional, problems. Despite the treatment and other assistance she was receiving, her resources were sometimes stretched beyond their limits in caring for the two older children and she could not realistically be expected to fulfill T’s needs. The referee concluded that the state had proved by clear and convincing evidence4 that the respondent was suffering from a continuing mental deficiency which rendered her unable to provide her son T with the care, guidance and control necessary to his well-being as required by U7-43a (a) (3).

I

In order to terminate the parental rights of the respondent under $ 17-43a (a) (3) the state was required to prove by clear and convincing evidence (1) that she suffered from a “continuing physical or mental deficiency” and (2) that, by reason of this condition, she had been and would, for such a period of time as would be detrimental to the best interest of the child, be unable to furnish him with the necessary care, guidance and control. See Anonymous v. Norton, 168 Conn. 421, 429, 362 A.2d *73 532, cert. denied, 423 U.S. 935, 96 S. Ct. 294, 46 L. Ed. 2d 268 (1975); In re Nunez, 165 Conn. 435, 439, 334 A.2d 898 (1973). In regard to the first element, there can be no serious question of the adequacy of the evidence that the respondent suffered from a continuing mental deficiency. When the testimony of the psychiatrist who had treated her for an extended period of time was ruled inadmissible, the court appointed another psychiatrist to make an examination. The report of this psychiatrist, which was admitted into evidence, indicated that Mrs. S had experienced two “mental breakdowns” about twenty-six years earlier, for each of which she was hospitalized for several weeks. During one of these confinements she received shock treatments. Following T’s birth, about seven years before trial, she suffered another “breakdown” for which she was hospitalized three weeks. Since then she had been receiving medication for her mental condition and was seen by a psychiatrist each month. Her medical history indicated that she had been diagnosed as suffering from chronic undifferentiated schizophrenia. During the examination, impairment of recent and remote memory was evident. Her thought processes were slow, simple, and very concrete, although there was no evidence of thought disorder. Frequently she did not understand questions asked by the examiner. She had left school at the age of sixteen while she was in the seventh grade. She had a fair amount of knowledge considering her education but had difficulty doing calculations. The diagnosis of the examining psychiatrist was (1) inadequate personality; (2) probable borderline intelligence; and (3) chronic undifferentiated schizophrenia. The report also recommended further testing to rule out a mild organic brain syndrome which some of the respond *74 ent’s symptoms suggested. We find no merit in the claim of the respondent that the examination conducted by the court appointed psychiatrist was inadequate to justify the conclusions reached in regard to her mental condition or that the court could not reasonably rely upon the opinion of this expert.5

The second element required for termination under § 17-43a (a) (3) involves the relationship between the mental deficiency and the ability of the parent to care for the particular child who is the subject of the proceeding. The referee found that the respondent’s mental deficiency prevented her from achieving the level of parenting ability necessary to respond to the needs of her son. The respondent challenges the sufficiency of the evidence *75 to support this finding, but it is clear that several witnesses, whose qualifications were never questioned, expressed the same opinion. The report of the examining psychiatrist stated that the low intelligence of the respondent affected her judgment, capacity for insight and ability to empathize with T, to understand the complexities of his behavior, to seek appropriate solutions, and to provide him with the intellectual stimulation he needs; that she suffered from extreme emotional impoverishment and a sense of neediness; that she would not be able to satisfy this very needy child and she might retaliate with abuse; that returning T was likely to set up an intolerable and explosive situation; and that her psychiatric history suggested limited tolerance for stress, and her blunted affect and slow thought processes, most likely the result of chronic schizophrenia, further impair her capacity to relate to others, especially a child. The social worker who investigated the case reported that the psychiatrist who had been treating Mrs. S diagnosed her as “schizophrenic,” “a long term disabled person,” and “a totally inadequate person who relates poorly.”6 This doctor felt very strongly that she would be unable to relate to T emotionally and meet his needs. The staff at the hospital where Mrs. S was being treated felt that their attempts to teach parenting and related skills to Mrs. S had failed because she had not gained any insight into her own behavior and saw no need to improve her way of relating. The social worker expressed the view that Mrs. S was an inadequate, passive person *76 who lacked the capability of consistently interacting and stimulating a depressed, withdrawn child and could not handle T under stressful situations. Mrs. S had said that .even during her visits with T he ignored her and did not listen to her.

Faced with this plenitude of expert testimony in support of the conclusion reached by the referee, the respondent points to testimony about the strong bond of mutual affection which existed between her and T. She claims that few parents could be expected to provide the “extraordinary level of parenting” which the referee found T required and that she should not be penalized for his deficiencies. It is quite clear, however, that the referee found Mrs. S to be a substandard parent, whose “restricted mental, emotional and judgmental resources . . . are presently stretched to and sometimes beyond their outermost limits by her efforts to guide and discipline” her two other children. The reference to T’s exceptional needs merely emphasizes the breadth of the gap between her marginal capability and his requirements. Under § 17-43a (a) (3) the court must consider, once mental deficiency has been determined, whether such disability makes a parent incapable of adequately responding to the needs of the particular child involved.

The respondent also challenges the refusal of DCYS to extend the visitation periods, as she had requested, in order to allow an opportunity for a more viable mother-son relationship to develop and to verify the prognostications of professionals by actual experience. A decision against overnight visitation had been made after a psychiatric evaluation of Mrs. S in 1975 and was based upon that report as well as the observations of the agency *77 social worker, who concluded that her condition would not permit such an arrangement. “Psychological testimony from professionals is rightly accorded great weight.” In re Juvenile Appeal (Anonymous), 177 Conn. 648, 667, 420 A.2d 875 (1979). The considerations advanced by the respondent are more appropriately addressed to the trier than to our function of appellate review. “[W]e are not in a position to second-guess the opinions of witnesses, professional or otherwise, nor the observations and conclusions of the Juvenile Court when they are based on reliable evidence.” Id., 668. We find no error in the conclusion of the referee that the petitioner had proved the ground for terminating the parental rights of the respondent in accordance with § 17-43a (a) (3) by clear and convincing evidence.

The dissenting opinion, Parskey, J., appears to challenge the constitutionality of § 17-43a (a) (3) as a ground for termination of parental rights, at least as we have construed and applied it in this case. Wisconsin v. Yoder, 406 U.S. 205, 233-34, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972), is relied upon for the proposition that “it is only where the child’s essential health and safety needs are in jeopardy that the right of the state to override the parental rights is justified.” We disagree with such a reading of that decision, which was rendered in a different context, because the passage relied upon7 speaks *78 not only of health or safety but also of the “potential for significant social burdens.” Id. A further elucidation in the opinion of the criterion for state interference is whether parental control will “impair the physical or mental health of the child, or result in an inability to be self-supporting or to discharge the duties and responsibilities of citizenship, or in any other way materially detract from the welfare of society.” Id. We see no conflict between these concerns and those contained in the standard for termination established by § 17-43a (a) (3): inability of the parents “by reason of continuing physical or mental deficiency ... to provide [a child] with the care, guidance and control necessary to his physical, educational, moral and emotional well-being . . . .”

The dissenting opinion, Parskey, J., also seems to take the broader ground that terminating the parental rights of a mentally deficient parent “introduces a concept of no fault termination of parental rights” which penalizes such a parent for his mentally deficient status. Termination of parental rights is ordinarily a necessary prelude to an adoption or other dispositive action to be taken in the best interests of the child. In weighing the interests of the child against the hardship imposed on the parent, the legislature may properly strike the balance at the point where the mental or physical deficiency, even though not involving fault, is *79 so great as to render the parent incapable of measuring up to the child’s needs as those are delineated in U7-43a (a) (3).

II

A finding that a statutory ground for termination has been established does not automatically require the termination of parental rights, because the statute is phrased permissively: “The superior court . . . may grant such petition upon finding [one of the five grounds for termination] . . . (Emphasis added.) Greneral Statutes § 17-43a. Ordinarily the only purpose served by such a termination is to make a child available for adoption. See In re Juvenile Appeal (Anonymous), supra, 673. In the case before us no other objective is suggested by the evidence. Unless there is a realistic prospect for adoption of T, it would make no sense to sever his existing tie to his mother and set him adrift as a permanent ward of the state. In accordance with this consideration the referee recommended that the decree terminating parental rights not enter until the petitioner had satisfied the court that “T will forthwith or within a reasonable time thereafter, and without the necessity of undergoing an interim placement, be placed in adoption . . . .” The trial court, for reasons undisclosed by the record, and without objection from any party, did not follow this part of the recommendation but simply ordered termination without further evidence of the adoptability of T after affirming two8 of the statutory grounds found by the referee.

Before the referee, a social worker testified that she had found parents who were interested in *80 adopting T even though, they were aware of his problems. The recommendation of the referee indicates that he contemplated a further proceeding in which the prospects for adopting T would be explored in greater depth as the central issue. The failure to conduct such a hearing, even though implicitly assented to by counsel, was error on the part of the trial court and leaves a gap in the termination proceeding which must be filled. Because of the passage of more than three years since the judgment, the deficiency may be more difficult to cure than if the additional hearing had been contemporaneous with the judgment. At this point it would be speculative to assume that the same adoptive home is still available or that prospects for the adoption of T have not changed. Other considerations related to the best interests of T, the touchstone of the dispositional phase of the termination proceeding at which we have now arrived; In re Juvenile Appeal (Anonymous), supra, 673-74; may also have intervened. These would include any substantial change in circumstances which has occurred during the pendency of the appeal indicating that the ground for termination which we rely upon no longer exists.

Although we have affirmed the conclusion of the trial court in the adjudicatory phase that the statutory ground for termination of the respondent’s parental rights under § 17-43a (a) (3) has been proved, we deem it necessary to remand the case for further proceedings as to the prospects for finding an adoptive home for T and for consideration of whether any substantial change has taken place in the condition of Mrs. S or T which has removed § 17-43a. (a) (3) as a present ground for termination. See Interstate Fur Mfg. Co. v. *81 Redevelopment Agency, 154 Conn. 600, 604, 227 A.2d 425 (1967). The petitioner, of course, would have the burden of satisfying the court of the current likelihood of the adoption of T and the absence of any such change of circumstances by clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 769-70, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982).

In order to minimize any further delay in the final resolution of this matter and in the exercise of our general supervisory power over appeals; Practice Book § 3096; it is ordered that the further proceedings contemplated by this opinion take place within sixty days from this date. It is further ordered that, if any party shall seek review of the determination made by the trial court at such proceedings within the time allowed for taking an appeal prescribed in Practice Book § 3007, the case shall be returned to this court for such review, without the necessity of filing a formal appeal.

There is error in part, the judgment is set aside except for the adjudication of the existence of the ground for termination specified in General Statutes § 17-43a (a) (3), and the ease is remanded for further proceedings in accordance with this opinion.

In this opinion, Petebs and IIennessy, Js., concurred.

“[General Statutes] See. 17-43a. termination op parental rights op child committed to COMMISSIONER, (a) In respect to any child committed to the commissioner of children and youth services in accordance with section 46b-129, either the commissioner, or the attorney who represented such child in the prior commitment proceeding, or an attorney appointed by the superior court on its own motion, or an attorney retained by such child after attaining the age of fourteen may petition the court for the termination of parental rights with reference to such child, including the right to petition the court for the revocation of the commitment of the child. The superior court upon hearing and notice, as provided in sections 45-61d and 45-61f, may grant such petition upon finding that over an extended period of time, which, except as hereinafter provided in this subsection, shall not be less than one year: (1) The parents have abandoned the child in the sense that they have failed to maintain a reasonable degree of interest, concern or responsibility as to the child’s welfare; or (2) the parents have failed to achieve any such degree of personal rehabilitation as would reasonably encourage the belief that at some future date they could assume a responsible position in their child’s life; or (3) the parents, by reason of continuing physical or mental deficiency have, and for such period of time as wiE be detrimental to the best interest of the child, wiE be unable to provide him with the care, guidance and control necessary to his physical, educational, moral and emotional well-being; or (4) there is no ongoing parent-child relationship, which means the relationship that ordinarEy develops as a result of a parent having met on a day to day basis the physical, emotional, moral and educational needs of the ehEd and to allow further time for the establishment or reestablishment of such parent-ehEd relationship would be detrimental to the best interest of the ehEd; or (5) that both parents, or the sole parent of such ehEd have consented to termination of parental rights with respect to such ehEd. The court may waive the requirement that one year expire prior to the termination of parental rights if it finds from the totality of the circumstances surrounding the ehEd that such a waiver is necessary to promote the best interest of the ehEd.”

The state petitioned for termination on three grounds. General Statutes § 17-43a (a) (2), (3) and (4). After the referee recommended a decision against the respondent on all three grounds, she filed a motion, entitled inappropriately “motion to dismiss,” claiming that the referee’s findings of fact and the evidence presented by the state were insufficient to support the referee’s conclusions. The trial court denied this motion, but did not accept the referee’s *70 conclusion that the state had demonstrated the lack of an ongoing parent-ehild relationship as required by General Statutes § 17-43a (a) (4). The referee also recommended the termination of the parental rights of Mr. S to his son under § 17-43a (a) (4), the only ground pressed against him by the state at the time of the hearing. Mr. S consented to the termination of his rights after the referee’s decision was announced.

Although the decision in Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982), was not announced until after the trial of this case, the referee expressly found that the allegations of the petition in respect to Mrs. S had been established by evidence meeting the “clear and convincing” standard of proof required as a matter of constitutional law for the termination of parental rights. See Santosky v. Kramer, supra, 769-70.

Two personal interviews with. Mrs. S, a brief interview with the two older children, and various records of both Mrs. S and T formed the basis for the expert testimony offered by the court appointed psychiatrist. The psychiatrist met with Mrs. S once for one and one-quarter hours and again for one and one-half hours. This court has recognized that length of examination alone does not necessarily detract from the reliability of testimony. Seymour v. Seymour, 180 Conn. 705, 713, 433 A.2d 1005 (1980). Rather, the credibility of the expert opinion is to be evaluated in light of the expert’s opportunity to arrive at a reasoned conclusion. Id., 712. Among the records examined were a 1975 psychiatric examination of Mrs. S, a 1975 and 1977 developmental examination of T, a 1975 clinical report and a 1976 psychological examination of T by a children’s hospital, a 1977 psychiatric evaluation of Mrs. S and T, a 1979 school psychological report on T, a 1979 psychiatric report on T from another hospital, and a department of children and youth services (DOTS) case summary of T from 1977 to 1979. These reports were a proper basis for expert opinion on psychiatric matters in addition to the interviews, because such reports are commonly relied upon within the profession. State v. Cuvelier, 175 Conn. 100, 107-108, 394 A.2d 185 (1978). Also, “where such evidence is admittéd without objection, it may properly be considered for whatever it is worth on its face in determining the facts in issue.” Id., 108. The respondent made no objection to the testimony of the court appointed psychiatrist or to the introduction of her report in evidence.

No objection to this hearsay evidence was raised at the trial nor has the respondent claimed it as a basis for error. “Hearsay evidence admitted without objection, if believed by the court, is a sufficient basis for a finding of fact.” DeGroat v. DeGroat, 171 Conn. 363, 370 A.2d 963 (1976).

The full passage from which the quoted excerpts are taken reads as follows: “To be sure, the power of the parent, oven when linked to a free exercise claim, may be subject to limitation under Prince [v. Massachusetts, 321 U.S. 158, 64 S. Ct. 438, 88 L. Ed. 645 (1944)] if it appears that parental decisions will jeopardize the health or-safety of the child, or have a potential for significant social burdens. But in this case, the Amish have introduced persuasive evidence undermining the arguments the State has advanced to support its elaims in terms of the welfare of the child and society as a whole. *78 The record, strongly indicates that accommodating the religious objections of the Amish by forgoing [sic] one, or at most two, additional years of compulsory education will not impair the physical or mental health of the child, or result in an inability to be self-supporting or to discharge the duties and responsibilities of citizenship, or in any other way materially detract from the welfare of society.” (Emphasis added.) Wisconsin v. Yoder, 406 U.S. 205, 233-34, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1952).

See footnote 3, supra.