author: BORDEN, J.

text:
    IN RE DEVON W. ET AL.

    (AC 31695)
    (AC 31701)
    Beach, Bear and Borden, Js.

      Argued September 7
    officially released October 26, 2010

      Valeria Caldwell-Gaines, for the appellant (respondent mother in AC 31701).

      Trudy Condio, for the appellants (minor child Devon W. et al. in AC 31695).

      Michael Besso, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman and Cynthia Mahon, assistant attorneys general, for the appellee (petitioner in both cases).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

BORDEN, J.

The respondent mother and three of her minor children, Devon W., Alexander S. and Xavier L., appeal from the judgments of the trial court rendered in favor of the petitioner, the commissioner of children and families, terminating her parental rights. The respondent claims that the court improperly (1) denied her motion to dismiss the petitioner’s termination of parental rights petition; (2) found that the department of children and families (department) made reasonable efforts to reunify her with her children; (3) found that she had failed to achieve a sufficient degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the ages and needs of the children, she could assume a responsible position in their lives; and (4) violated her constitutionally protected liberty interest by terminating her parental rights solely on the basis of her mental health. In addition, the children claim that the court improperly found that termination of the respondent’s parental rights was in their best interests. We affirm the judgments of the trial court.

The record reveals the following facts and relevant procedural history. As noted by the court, life has dealt the respondent a difficult hand. At the age of twelve, after having been abandoned by her father, she was removed from her mother’s care as a result of being sexually assaulted by her mother’s partner. In January, 2000, at the age of fifteen, the respondent was hospitalized after experiencing a psychotic episode characterized by voices commanding her to kill her grandmother, siblings and herself. She subsequently was diagnosed with “adolescent anti-social behavior and depressive disorder and suggested mild mental retardation . . . .”

In January, 2002, at the age of seventeen, the respondent gave birth to her first son, Devon. She gave birth to her second son, Alexander, in March, 2005. On March 9, 2005, the department became involved with the respondent after receiving a report that she had appeared at a prenatal appointment with two black eyes. The respondent reported to the department a history of domestic violence with the father of Alexander. As a result, the department opened the case for treatment services, and in July, 2005, the respondent participated in a psychological evaluation with Derek Franklin, a psychologist. Franklin confirmed that the respondent had a history of depression and psychosis, and reported that she had a full scale IQ of fifty-nine, which demonstrated cognitive impairment.

In August, 2005, Leshan B. Hanson, a social worker for the department, visited the respondent to conduct a comprehensive assessment of her condition. The respondent’s mental health issues were the reason for the department’s involvement in her case, coupled with concerns over possible parenting, housing and domestic violence problems. During this visit, Hanson confirmed the respondent’s cognitive limitations, and she learned that the respondent was engaging in a transient lifestyle, living at various times with her mother, aunt and a boyfriend. Additionally, the respondent informed Hanson that Devon had been living with his maternal grandmother since birth.

In September, 2005, the respondent and Alexander moved in with the maternal grandmother and Devon. Shortly thereafter, Hanson learned that the respondent had moved out of that home and had left her children in the maternal grandmother’s care. The department later determined that the respondent had resumed her transient lifestyle and was unable to maintain a stable residence.

On April 18,2006, the petitioner filed neglect petitions on behalf of Devon and Alexander, alleging that the two children had been neglected by being denied proper care and attention and by being permitted to live under conditions, circumstances or associations injurious to their well-being. The petitioner subsequently filed for and was granted an order of temporary custody of Devon and Alexander and, on October 19, 2006, both boys were adjudicated neglected and committed to the care of the petitioner. Following the removal of Devon and Alexander, the petitioner referred the respondent to Community Health Services (Community Health) and the Chrysalis Center, Inc. (Chrysalis Center), for mental health treatment and parenting skills assistance. The respondent began attending services with Community Health but did not actively participate with the Chrysalis Center.

On November 22, 2006, the respondent gave birth to her third child, Xavier. The petitioner filed for and was granted an order of temporary custody of Xavier a few days after his birth, and, on April 5, 2007, he was adjudicated neglected and committed to the care of the petitioner.

Following these events, the respondent obtained a stable residence and began working seriously toward reunification with her children. From June through October, 2007, she met regularly with Amy Taylor, a psychiatrist with Community Health. Taylor testified that during this time, the respondent was compliant with her mental health treatment and “very much [wanted] her children back and was willing to do whatever [the department] said to get them back.” In August, 2007, as a result of her progress, the department initiated an intensive family reunification services program in order to assist in the reunification of the respondent and her children.

On October 8, 2007, the respondent gave birth to her fourth child, Aziah. Although the department continued to work toward reunifying the respondent with her other three children, following Aziah’s birth, the respondent’s compliance with her treatment began to deteriorate. Taylor testified that after Aziah was bom, the respondent essentially “dropped out of treatment” for several months until reappearing at Community Health on January 22,2008, without an appointment. According to Taylor, when the two met on this date, the respondent appeared psychotic, as she discussed the existence of an imaginary friend who would say things to her such as, “don’t you know they’re trying to screw you.” The respondent therefore was prescribed antipsychotic medication for her condition. Taylor opined that the cause of the respondent’s psychotic behavior was her lack of medication coupled with extreme stress that stemmed from her trying to take care of young children in her home.

On February 1, 2008, the petitioner filed for and was granted an order of temporary custody of Aziah. The petitioner cited the respondent’s continuing mental health issues and noncompliance with mental health treatment as the basis for removal. Aziah was adjudicated neglected and committed to the care of the petitioner on April 10, 2008.

Following her meeting with Taylor in January, 2008, the respondent’s compliance with her mental health treatment at Community Health did not improve. She missed several appointments with her individual therapist, Suzanne Roberts, and Roberts reported to Taylor that the respondent was not taking her medication properly. As a result, in March, 2008, Taylor ordered Gentiva Health Services, Inc. (Gentiva), to visit the respondent daily in order to assist in the administration of her medication. In mid-April, however, Gentiva reported to Taylor that the respondent had missed numerous medication administration appointments and, as a result, it would cease to provide services to her.

Taylor last met with the respondent in May, 2008. Taylor testified that, although the respondent did not demonstrate signs of psychosis at that time, she was at risk for developing psychosis in the future if she did not take her medication properly or she was under extreme stress. The respondent then failed to attend follow-up appointments in June and July, 2008, and Community Health informed her that she would be discharged from its services. The respondent later called Taylor and indicated that she was going to transfer her treatment to Hartford Behavioral Health (Hartford Behavioral).

At Hartford Behavioral, the respondent met with Garry Milsop, a psychologist and senior clinician at the facility. Upon intake, Milsop diagnosed the respondent with major depression, severe without psychosis, and she was prescribed with an antidepressant. Milsop described the respondent’s compliance with her mental health treatment at Hartford Behavioral as “consistent and committed,” and indicated that her attendance over the course of the treatment was normal. Although the two discussed her past psychotic episodes, the respondent failed to mention the episode she had in January, 2008, following the birth of Aziah. Milsop testified that this information would have been helpful in formulating his assessment of the respondent.

On August 6, 2008, the petitioner filed these petitions pursuant to General Statutes § 17a-112 to terminate the respondent’s parental rights with respect to all four of her children. The petitioner alleged that each child had been adjudicated neglected and that the respondent had failed to achieve a sufficient degree of personal rehabilitation as would encourage the belief that within a reasonable time she could assume a responsible position in her children’s lives. See General Statutes § 17a-112 (j) (3) (B). Trial commenced, and at the close of the petitioner’s case-in-chief, the respondent moved for a dismissal of the petitions, claiming that the petitioner had failed to make out a prima facie case. See Practice Book § 15-8. The court denied that motion, concluding that the petitioner had “made a prima facie showing that [the respondent’s] mental health history and continuing condition [raise] significant doubt that she would be able to properly care for her four young children as they grow older . . . .”

Thereafter, the court issued its memorandum of decision granting the petitions for termination as to Devon, Alexander and Xavier, and denying the petition as to Aziah. The court reasoned that, although the respondent’s “commitment to all of her children is unquestionable ... for the three older boys, while still bonded to [her], too much time in the care of and bonded to others has passed for reunification to be in their best interest.” The court also found, pursuant to § 17a-112 (k), that termination of parental rights was in the best interests of Devon, Alexander and Xavier. These appeals followed. Additional facts will be set forth as necessary.

I

RESPONDENT’S APPEAL

A

The respondent first claims that the court improperly denied her motion to dismiss the petitions for termination of her parental rights on the ground that the petitioner failed to produce sufficient evidence to establish a prima facie case. We disagree.

We begin our analysis by setting forth the applicable standard of review. “The standard for determining whether the [petitioner] has made out a prima facie case, under Practice Book § 15-8, is whether the [petitioner] put forth sufficient evidence that, if believed, would establish a prima facie case, not whether the trier of fact believes it. . . . For the court to grant the motion [for judgment of dismissal pursuant to Practice Book § 15-8], it must be of the opinion that the [petitioner] has failed to make out a prima facie case. In testing the sufficiency of the evidence, the court compares the evidence with the allegations of the [petition]. ... In order to establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove.” (Emphasis in original; internal quotation marks omitted.) In re Nasia B., 98 Conn. App. 319, 325-26, 908 A.2d 1090 (2006). “[Wjhether the [petitioner] has established a prima facie case is a question of law, over which our review is plenary.” (Internal quotation marks omitted.) Id., 325.

The respondent contends that the court improperly denied her motion to dismiss because the court erroneously drew inferences in favor of the petitioner and improperly concluded that there was sufficient evidence to support the allegation that the respondent failed to rehabilitate herself. We begin by noting that any reasonable inferences that may have been drawn by the court in the petitioner’s favor were permissible. When presented with a motion to dismiss filed pursuant to Practice Book § 15-8, “[t]he evidence offered by the [petitioner] is to be taken as true and interpreted in the light most favorable to [the petitioner] and every reasonable inference is to be drawn in [the petitioner’s] favor.” (Internal quotation marks omitted.) Id., 326; see also Thomas v. West Haven, 249 Conn. 385, 399, 734 A.2d 535 (1999) (in ruling on Practice Book § 15-8 motion, court determines “whether the plaintiffs evidence . . . if given the benefit of all favorable inferences, makes out a prima facie case” [emphasis in original]), cert. denied, 528 U.S. 1187, 120 S. Ct. 1239, 146 L. Ed. 2d 99 (2000).

We turn our attention to the respondent’s claim that the petitioner failed to proffer sufficient evidence to establish a prima facie case. Specifically, she claims that the petitioner did not produce adequate evidence to demonstrate that the respondent failed to rehabilitate herself as required by § 17a-112 (j) (3) (B). Our review of the record, however, reveals that the petitioner submitted an abundance of evidence that, when taken as true and interpreted in the light most favorable to the petitioner, demonstrated that the respondent’s mental health history raised significant doubts as to whether she could rehabilitate to a level that would allow her to provide appropriate care for her children within a reasonable time.

As set forth previously, the petitioner’s evidence at trial demonstrated that the respondent was hospitalized in January, 2000, as a result of a psychotic episode, and, at that time, she was diagnosed with a behavioral and depressive disorder coupled with mild retardation. This diagnosis was confirmed five years later by psychologist Franklin, who opined that the respondent had a full scale IQ of fifty-nine. Although the record reflects that the respondent was compliant with her mental health treatment for several months in 2007 while participating in services with Community Health, psychiatrist Taylor testified that the respondent essentially “dropped out of treatment” after the birth of Aziah, her fourth child. More important, Taylor testified as to the recurrence of a psychotic episode in January, 2008, and to the respondent’s poor compliance with treatment from January through May, 2008, including her noncompliance with medication orders. In sum, there was ample evidence to establish a pattern of the respondent’s mental instability and her failure to benefit from mental health treatment so as to raise legitimate concerns over her ability to rehabilitate herself sufficiently. Accordingly, we conclude that the court properly denied the respondent’s motion to dismiss.

B

The respondent next claims that the court improperly found that the department had made reasonable efforts to reunify her with her children. We disagree.

We first turn to the standard of review that governs the respondent’s claim. “In order to terminate parental rights under § 17a-112 (j), the department is required to prove, by clear and convincing evidence, that it has made reasonable efforts ... to reunify the child with the parent, unless the court finds . . . that the parent is unable or unwilling to benefit from reunification .... [Section 17a-112] imposes on the department the duty, inter alia, to make reasonable efforts to reunite the child or children with the parents. The word reasonable is the linchpin on which the department’s efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof. Neither the word reasonable nor the word efforts is, however, defined by our legislature or by the federal act from which the requirement was drawn. . . . [Reasonable efforts means doing everything reasonable, not everything possible. . . . The trial court’s determination of this issue will not be overturned on appeal unless, in light of all of the evidence in the record, it is clearly erroneous.” (Internal quotation marks omitted.) In re G.S., 117 Conn. App. 710, 716, 980 A.2d 935, cert. denied, 294 Conn. 919, 984 A.2d 67 (2009). “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.” (Internal quotation marks omitted.) In re Melody L., 290 Conn. 131, 145, 962 A.2d 81 (2009).

Our careful review of the record reveals that there was adequate evidence supporting the court’s finding that the department had made reasonable efforts to reunify the respondent with her children. While the department was involved in the respondent’s case, she was offered a multitude of services to support her mental health and parental skills, and to address her history of being a victim of domestic violence. Upon learning that the respondent was engaged in a transient lifestyle and living apart from Devon and Alexander, the department refrained from immediate commitment of the children and allowed the respondent to mature to a stage where she might be in a position better to care for them. Additionally, when the respondent’s compliance with her mental health treatment improved, the department recognized her efforts and offered additional services that were meant to assist in reunifying the family. Although the respondent criticizes the department for a temporary lapse in one of the many services offered to her, a brief lapse in a single service does not render the department’s services unreasonable. See In re Alexander T., 81 Conn. App. 668, 673, 841 A.2d 274 (single lapse in referral services “does not make the overall efforts of the department fall below the level of what is reasonable”), cert. denied, 268 Conn. 924, 848 A.2d 472 (2004). We conclude, therefore, that the court’s finding that the department had made reasonable efforts at reunification was not clearly erroneous.

C

The respondent also claims that there was insufficient evidence to support the court’s finding that she had failed to achieve adequate personal rehabilitation pursuant to § 17a-112 (j) (3) (B). We disagree.

The applicable standard of review for the respondent’s claim is well settled. “A trial court’s finding that a parent has failed to achieve sufficient rehabilitation will not be overturned unless it is clearly erroneous. ... 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 the trial court’s conclusion was factually supported and legally correct. ... In doing so, however, [g]reat weight is given to the judgment of the trial court because of [the court’s] opportunity to observe the parties and the evidence. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. . . . [Rather] every reasonable presumption is made in favor of the trial court’s ruling.” (Internal quotation marks omitted.) In re Melody L., supra, 290 Conn. 148.

“We have stated that [p]ersonal rehabilitation as used in [§ 17a-112] refers to the restoration of a parent to his or her former constructive and useful role as a parent. . . . [Section 17a-112] 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. . . . Rehabilitate means to restore [a . . . delinquent person] to a useful and constructive place in society through social rehabilitation. . . . The statute does not require [a parent] to prove precisely when she will be able to assume a responsible position in her child’s life. Nor does it require her to prove that she will be able to assume full responsibility for her child, unaided by available support systems. It requires the court to find, by clear and convincing evidence, that the level of rehabilitation she has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date she can assume a responsible position in her child’s life.” (Internal quotation marks omitted.) In re Kaitlyn A., 118 Conn. App. 14, 26, 982 A.2d 253 (2009).

The respondent contends that the trial court erroneously found that she had failed to achieve sufficient personal rehabilitation because the evidence she presented at trial demonstrated her consistent progress with mental health treatment. Although there were facts in the record that demonstrated that the respondent’s condition had improved over time, and that she was continuing to receive treatment from Hartford Behavioral at the time of trial, “ [successful completion of the petitioner’s ... expectations is not sufficient to defeat the petitioner’s 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 [children] 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 children.” (Internal quotation marks omitted.) Id.

As we explained in part IA of this opinion, there was ample evidence in the record to support the court’s finding that the respondent had failed to rehabilitate herself sufficiently. It is undisputed that the respondent had a history of mental illness, including periods of hospitalization and diagnoses of antisocial and depressive disorders. More important, her participation in treatment services for her mental health condition at times was poor and, for a period of time, nonexistent. Additionally, the record reflects that the respondent’s condition worsened when she was under the stress of taking care of Aziah while increasing visitation with her other three children. The court’s “significant concerns about the likely success of full reunification” are buttressed by the fact that the respondent has never demonstrated an ability to care for all of her children at the same time. We therefore conclude that there was sufficient evidence in the record supporting the court’s finding that the respondent failed to achieve a sufficient degree of personal rehabilitation as would encourage the belief that she could assume a responsible position in each child’s life within the foreseeable future.

D

We turn next to the respondent’s claim that the court violated her constitutionally protected liberty interest by terminating her parental rights solely on the basis of concerns about her mental health. The respondent concedes that her claim was not raised at trial and now seeks to prevail on appeal on the basis of her unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and the plain error doctrine.

We conclude that the respondent has failed to demonstrate that her claim is one of constitutional magnitude, and, therefore, it is not reviewable under Golding. The respondent maintains that her claim is of constitutional dimension because it implicates her fundamental right to raise her children. Although we recognize that “[t]he right of a parent to raise his or her children has been recognized as a basic constitutional right”; (internal quotation marks omitted) In re Tremaine C., 117 Conn. App. 521, 529, 980 A.2d 317, cert. denied, 294 Conn. 920, 984 A.2d 69 (2009); our review of the constitutional violations the respondent alleges reveals that she is essentially contending that the court’s findings were not supported by clear and convincing evidence. The respondent’s claim consists of allegations that the court failed properly to weigh facts in her favor, improperly found that the petitioner produced sufficient evidence of her cognitive limitations and difficulty managing her daily life, and failed to explain the clear and convincing evidence it relied on in making its findings related to the department’s reasonable efforts at reunification and the best interests of the children. “Putting a constitutional tag on a nonconstitutional claim will [not] change its essential nature . . . .” (Internal quotation marks omitted.) State v. Altajir, 123 Conn. App. 674, 687-88, 2 A.3d 1024 (2010). Because the respondent has failed to allege a claim of constitutional magnitude, she cannot prevail under Golding.

The respondent also seeks to prevail under the plain error doctrine. “The plain error doctrine is an extraordinary remedy used by appellate courts to rectify errors committed at trial that, although unpreserved, are of such monumental proportion that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party. [T]he plain error doctrine ... is not ... a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy.” (Internal quotation marks omitted.) In re Tremaine C., supra, 117 Conn. App. 535 n.13. The record does not support the respondent’s claim under the plain error doctrine.

II

MINOR CHILDREN’S APPEAL

Finally, we address the claim brought by Devon, Alexander and Xavier that during the dispositional phase of the trial, the court erroneously found that termination of the respondent’s parental rights was in their best interests. We disagree.

“In the dispositional phase of a termination of parental rights hearing, the emphasis appropriately shifts from the conduct of the parent to the best interest of the child.” (Internal quotation marks omitted.) In re Janazia S., 112 Conn. App. 69, 97, 961 A.2d 1036 (2009). “The best interests of the child include the child’s interests in sustained growth, development, well-being, and continuity and stability of its environment. ... In the dispositional phase . . . the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent’s parental rights is not in the best interest of the child. In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in [§ 17a-112 (k)].” (Internal quotation marks omitted.) In re Joseph L., 105 Conn. App. 515, 529, 939 A.2d 16, cert. denied, 287 Conn. 902, 947 A.2d 341, 342 (2008). “It is well settled that we will overturn the trial court’s decision that the termination of parental rights is in the best interest of the children only if the court’s findings are clearly erroneous.” In re Rachel J., 97 Conn. App. 748, 761, 905 A.2d 1271, cert. denied, 280 Conn. 941, 912 A.2d 476 (2006).

Our careful review of the record reveals that the court, in granting the petitions to terminate the respondent’s parental rights, properly considered the statutory factors set forth in § 17a-112 (k) and issued findings that are neither clearly erroneous nor contrary to the law. Although the respondent claims that the evidence adduced at trial revealed that she and the children have a strong bond, “[o]ur courts consistently have held that even when there is a finding of a bond between parent and a child, it still may be in the child’s best interest to terminate parental rights.” (Internal quotation marks omitted.) In re Joseph L., supra, 105 Conn. App. 531. More important, the court’s analysis properly addressed the respondent’s inability to provide a stable home and permanent care for all of her children at the same time, as reflected by the fact that each child has spent a considerable portion of his life in the custody of the petitioner. See In re Victoria B., 79 Conn. App. 245, 263, 829 A.2d 855 (2003) (trial court’s best interest findings not clearly erroneous when much of child’s life had been spent in custody of petitioner and child needed stability and permanency). Accordingly, we conclude that there existed clear and convincing evidence for the court to have found that it was in the best interests of the children to terminate the parental rights of the respondent.

The judgments are affirmed.

In this opinion the other judges concurred.

       In AC 31701, the respondent mother appeals from the court’s judgment terminating her parental rights. The minor children appeal from the court’s judgment in AC 31695. We note that the minor children have standing to appeal from the judgment terminating the respondent mother’s parental rights. See In re Melody L., 290 Conn. 131, 157, 962 A.2d 81 (2009). The court also terminated the parental rights of each child’s father. Because the respondent fathers have not appealed, we refer in this opinion to the respondent mother as the respondent.

       The Chrysalis Center is a nonprofit health care agency that provides support to individuals and families struggling with mental illness. See http:// www.chrysaliscenterct.org/ (last visited September 23,2010). The additional mental health services offered by the Chrysalis Center were recommended by the department so that the respondent could establish a relationship with an individual case manager.

       General Statutes § 17a-112 Q) (3) (B) provides for the termination of parental rights when the child “(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 the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child

       Practice Book § 15-8 provides in relevant part: “If, on the trial of any issue of fact in a civil matter tried to the court, the [petitioner] has produced evidence and rested, a [respondent] may move for judgment of dismissal, and the judicial authority may grant such motion if the [petitioner] has failed to make out a prima facie case. ...”

       Under Golding, a party “can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the [respondent] of a fair trial; and (4) if subject to harmless error analysis, the [petitioner] has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the [respondent’s] claim will fail.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       The plain error doctrine has been codified in Practice Book § 60-5, which provides in relevant part: “The court may reverse or modify the decision of the trial court if it determines . . . that the decision is . . . erroneous in law. . . .”

       The children also repeat the claim asserted by the respondent that the court erroneously found that she failed to rehabilitate as required by § 17a-112 Q) (3) (B). We addressed and rejected that claim in part IC of this opinion.

       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 . . . has made reasonable efforts to reunite the family ... (3) the terms of any applicable court order entered into . . . and the extent to which all parties have fulfilled their obligations under such order; (4) the feelings and emotional ties of the child with respect to the child’s parents . . . and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (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 by the unreasonable act or conduct of the other parent of the child ... or by the economic circumstances of the parent.”


source: Caselaw Access Project

author: LAVINE, J.

license: Public Domain

text:
    IN RE KATIA M.

    (AC 31672)
    Bishop, Lavine and Foti, Js.

      Argued September 1
    officially released October 26, 2010

      Elizabeth Knight Adams, for the appellant (respondent father).

      John E. Tucker, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman and Erik T. Lohr, assistant attorneys general, for the appellee (petitioner).

      Judith Dayner, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

LAVINE, J.

The respondent father appeals from the judgment of the trial court terminating his parental rights with respect to his minor child for failure to achieve a sufficient degree of personal rehabilitation within the meaning of General Statutes § 17a-112 (j) (3). On appeal, the respondent claims that several of the court’s factual findings were clearly erroneous, specifically that (1) he was unwilling or unable to benefit from reunification services in light of his incarceration, (2) the department of children and families (department) had made reasonable efforts to reunify the family and (3) he had failed to achieve sufficient rehabilitation. We affirm the judgment of the trial court.

The record discloses the following procedural history. The petitioner, the commissioner of children and families, filed a neglect petition on April 24, 2006, and the child was adjudicated neglected on June 1, 2006. The child was allowed to remain with her mother under an order of protective supervision until the petitioner filed a motion for an order of temporary custody on behalf of the child on July 28,2006, which was sustained on August 4, 2006. The respondent agreed to the order of temporary custody. The respondent signed court-ordered steps on August 16, 2006. On September 21, 2006, the child was committed to the custody of the petitioner, who filed a petition to terminate the parental rights of the respondent, pursuant to § 17a-112 (j) (3) (B) (i), in March, 2009.

Following a trial held on September 23, 2009, the court made the following findings of fact as set forth in its memorandum of decision. The child’s mother has been known to the department since 1999 when she tested positive for cocaine at the birth of another, older child. The mother’s problems with respect to the child at issue were the lack of a safe living environment and parenting skills plus unresolved mental health and substance abuse issues. The respondent’s problem was lack of involvement in the child’s life due to his incarceration.

The mother tested positive for cocaine on two occasions within one month of the child’s birth. Although the child was bom on February 17,2006, the department was unaware of her birth until February 28, 2006, when the mother was discharged from the Liberations Substance Abuse Inpatient Program. Department personnel attempted to visit with the mother and child but were unable to locate them until March 1,2006. Arrangements were made for the child to reside with a paternal aunt until the mother began substance abuse treatment and tested negative for drugs. On March 20, 2006, the child and the mother were placed at Coventry House, but were discharged on April 16, 2006, due to the mother’s noncompliance. The two, however, were readmitted to Coventry House on April 17,2006. The mother and child again were discharged from Coventry House on June 23, 2006, due to the mother’s noncompliance. The mother and the child resided with a maternal aunt until July 25, 2006, when they moved to the home of the child’s maternal grandfather. The department placed a ninety-six hour hold on the child due to her mother’s transient lifestyle and substance abuse. See General Statutes § 17a-101g. The child was placed with her maternal aunt during this period. On March 3, 2007, the child and her mother were placed at the Morris Foundation. The mother was discharged from that program on April 10, 2007, and she and the child returned to the home of the maternal aunt. On May 3, 2007, the mother and the child moved into their own apartment in Hartford but were evicted shortly thereafter. They returned to the home of the maternal aunt until mid-December, 2007, when the mother moved into an apartment with a friend. On January 8, 2008, the child again was staying with her maternal aunt due to her mother’s homelessness. The child was removed from the home of her maternal aunt due to the aunt’s health issues. The child was placed in a licensed foster home, where she continuously resided through the time of the trial.

The court found that the respondent began to abuse substances when he was in his early teens and claimed to be “hooked” after his first use. He started to use cocaine when he was twenty-one. Although he attended Hartford public schools, he did not graduate but obtained his graduate equivalency diploma while he was incarcerated. The respondent and the child’s mother never married but are also the parents of a son, who is older than the child at issue.

The respondent’s criminal history dates to 1981 and includes charges of sale of illegal drugs, intent to sell or dispense drugs within 1500 feet of a public housing project, operating a drug factory, driving under the influence of alcohol, possession of narcotics, violation of probation, burglary in the third degree, criminal mischief in the second degree, interfering with a police officer and resisting arrest, larceny in the sixth degree, possession of burglary tools and assault on a police officer. The respondent again was incarcerated on January 25, 2006, on federal drug charges.

According to department records, the respondent needed to address his initial substance abuse problems and to demonstrate an awareness of the child’s emotional well-being and associated needs. The respondent also needed to establish a relationship with the child, whom he last saw in 2007. The court found that he has been incarcerated for a long period of time, would remain in prison until at least April 14, 2010, and was not in a position to provide for the child full-time.

The respondent participated in an administrative case review via telephone from the federal correctional institution in Cumberland, Maryland (federal prison), on June 24, 2009. At that time, the respondent reported that he maintains good behavior, that he is participating in a ten week parenting class that has seven or eight more weeks remaining and that he was going to begin an inpatient substance abuse treatment program. The respondent stated that he wanted his sister and his niece to be considered as placement options for the child. Those relatives, however, previously had been evaluated by the department and were not able to meet the licensing criteria. The respondent participated in the trial telephonically from the federal prison.

Following trial, the court found by clear and convincing evidence, presented through department social studies, that the respondent had yet to achieve a sufficient “level of rehabilitation . . . 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 Sarah Ann K., 57 Conn. App. 441, 448, 749 A.2d 77 (2000). At the time the child was adjudicated neglected, the respondent’s problems were incarceration and substance abuse. The court found that the respondent had not complied with the following court-ordered steps; see footnote 2 of this opinion; the respondent was not available to submit to substance abuse assessment and follow recommendations regarding treatment; he was not available to submit to random drug testing; the respondent has not participated in services and followed the recommendations of service providers. The court found that due to his incarceration, the respondent did not have adequate housing. The court also found that the respondent would not be able to assume a responsible position in the life of the child within a reasonable time. The court concluded that the respondent, therefore, had failed to achieve a sufficient degree of personal rehabilitation pursuant to § 17a-112 (j) (3) (B) (i).

The court also found that the child has adjusted well to the foster home where she has lived since January 11,2008. She attends preschool and interacts with other children. She has a routine with her foster parents and shows them a lot of affection by frequently hugging and kissing them. There are other foster children in the foster home, and the child has bonded with them. The child is healthy and on target developmentally. The foster parents are committed to adopting the child, should that option become available.

The court also made the findings required by § 17a-112 (k), by clear and convincing evidence, that are relevant to the respondent’s claim in that they clarify the court’s decision. The department could have made reasonable efforts to reunify the child with the respondent, and services could have been ordered in a timely manner and would have been appropriate for the circumstances at hand. The respondent, however, was unable or unwilling to benefit from reasonable reunification efforts. His serious issues clearly and convincingly make him unable or unwilling to benefit from reasonable reunification efforts. The respondent has not been able to take full advantage of services available, as he has been incarcerated for most of the current involvement of the department. The respondent is unable or unwilling to benefit from reunification services contemplated by the federal Adoption Assistance and Child Welfare Act of 1980, as amended. Department personnel made reasonable efforts to maintain contact with both parents.

The respondent failed to comply with the court-ordered steps, as he has been incarcerated for much of the time and because he has not been available much of the time, the child was unable to bond with him. At the time of trial, the child was three years and eight months old. Moreover, the court found that the respondent did not make realistic and sustained efforts to conform Ms conduct to minimally acceptable parental standards. He refused to cooperate with department personnel. He failed to make the changes necessary in Ms life that would indicate that he would be a safe, responsible and nurturing parent for the child. The court found that to permit the child to be cared for by him would compromise her safety.

The court also found by clear and convincing evidence that no unreasonable conduct by department personnel, the foster parents, department of correction personnel or tMrd parties prevented the respondent from maintaining a relationsMp with the cMld, nor did Ms economic circumstances prevent such relationsMp, although the limitations and restrictions inherent in the foster care system remained m effect. The respondent maintained little contact with the child and the petitioner. To improve Ms parental bond with the child, the respondent is in need of adequate parenting classes and significant visitation with the cMld. Because he remains incarcerated, time will not permit the necessary compliance.

Additionally, the court found by clear and convincing evidence that termination of the respondent’s parental rights as to the child would be in her best interest. In doing so, the court examined multiple relevant factors, including the child’s interest in sustained growth, development, well-being, stability and continuity of her environment, her length of stay in foster care, the nature of her relationsMp with her biological parent and the degree of contact maintained by her biological parent. The court balanced the cMld’s intrinsic need for stability and permanency against the benefits of mamtaining a connection with the respondent. The court concluded that it is not m the child’s best interest to contmue to maintain any legal relationsMp with the respondent, who has failed to gam insight into becoming a safe, nurturing and responsible parent. His judgment and conduct remain questionable and has not improved since the child has been in the custody of the petitioner.

The court found clear and convincing evidence of the child’s pressing need for permanence and stability. The respondent would need “much” time to show that he has forsaken substance abuse, addressed his issues, undertaken the necessary counseling and succeeded in it, established himself in the community and shown that he was capable of being a safe, nurturing and responsible parent for the child. The court found that the child cannot afford the delay with respect to her need for permanency, noting that “long-term stability is critical to a child’s future health and development. . . .” (Citation omitted.) In re Eden F., 250 Conn. 674, 709, 741 A.2d 873, reargument denied, 251 Conn. 924, 742 A.2d 364 (1999). Furthermore, the court noted, “[b]ecause of the psychological effects of prolonged termination proceedings on young children, time is of the essence” when resolving issues related to permanent or temporary care of neglected children. In re Alexander V., 25 Conn. App. 741, 748, 596 A.2d 934 (1991), aff'd, 223 Conn. 557, 613 A.2d 780 (1992).

The linchpin to a determination of rehabilitation, the court stated, necessarily includes a finding that the respondent can begin parenting within a reasonable period of time. The court found that the petitioner will remain incarcerated until perhaps April 14, 2010. Any reunification must wait for however long it may take him to rehabilitate himself so as to be able to provide safe and nurturing parenting to the child, attend to her developmental needs and provide her with an appropriate home. This would include a substantial period of sobriety, adequate housing, gainful employment, no further involvement with the criminal justice system and an unknown amount of therapeutic services to facilitate a relationship with this child, who well may be two to three years older before all of those events conceivably could unfold. To allow for such further time, easily more than one year after the respondent’s release, runs counter to our courts’ long recognized preference for permanency. The question is not simply one of rehabilitation; it is whether the petitioner can meet the particular needs of the child within a reasonable time. See In re Amneris P., 66 Conn. App. 377, 384-85, 784 A.2d 457 (2001). The court, therefore, found by clear and convincing evidence that it was in the best interests of the child to terminate the respondent’s parental rights. The respondent filed this appeal.

“Our standard of review on appeal from a termination of parental rights is whether the challenged findings are clearly erroneous. . . . The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous. . . . On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported.” (Internal quotation marks' omitted.) In re Cheila R., 112 Conn. App. 582, 589, 963 A.2d 1014 (2009). “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. . . . [G]reat weight is given to the judgment of the trial court because of [the trial court’s] opportunity to observe the parties and the evidence. . . . [An appellate court does] not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. . . . [Rather] every reasonable presumption is made in favor of the trial court’s ruling.” (Internal quotation marks omitted.) In re Jorden R., 293 Conn. 539, 558-59, 979 A.2d 469 (2009).

“The legal framework for deciding termination petitions is well-established. [A] hearing on a petition to terminate parental rights consists of two phases: the adjudicatory phase and the dispositional phase. During the adjudicatory phase, the trial court must determine whether one or more of the . . . grounds for termination of parental rights set forth in § 17a-112 . . . exists by clear and convincing evidence. ... If the trial court determines that a statutory ground for termination exists, then it proceeds to the dispositional phase. During the dispositional phase, the trial court must determine whether termination is in the best interests of the child. . . . The best interest determination also must be supported by clear and convincing evidence.” (Citations omitted; internal quotation marks omitted.) In re Davonta V., 285 Conn. 483, 487-88, 940 A.2d 733 (2008).

I

The respondent’s first claim is that the court improperly found that he was unwilling or unable to benefit from reunification services in light of his incarceration. The respondent’s claim is grounded in the principle that incarceration alone is not sufficient to terminate parental rights. Although we agree that incarceration alone is not a sufficient basis to terminate parental rights; see In re Juvenile Appeal (Docket No. 10155), 187 Conn. 431, 443, 446 A.2d 808 (1982); incarceration nonetheless may prove an obstacle to reunification due to the parent’s unavailability, which is the case here. We, therefore, disagree with the respondent’s claim.

In its memorandum of decision regarding its adjudicatory findings, the court stated that the respondent “is unwilling or unable to benefit from reunification services in that he has failed to make himself available for services and has failed to be a participant in the child’s life, in light of his incarceration.” The respondent does not dispute that, at the time of trial, he had been incarcerated for the child’s entire life. During her lifetime, he has been in custody in Hartford, Rhode Island, New York City and Maryland. He was to remain in the federal prison until April 14, 2010, at which time he expected to be released to a halfway house in Hartford, where he could be required to stay until October, 2010. He is required to then complete three years of probation, which carries the risk of reincarceration. During the trial, the respondent asked the court to continue the matter to afford him the opportunity to reunite his family.

The evidence at trial reveals that while the respondent was in custody in Hartford, department personnel arranged six visits between him and the child. When the respondent was transferred to the Wyatt prison facility in Rhode Island in October, 2007, where he remained until December, 2008, he failed to include the department on his contact list, despite the fact that the court-ordered steps required him to keep the department informed of his whereabouts. His department social worker, Carissa Silas, left telephone messages for him with his counselor, but the respondent did not return the calls. During that period of incarceration, Silas was communicating with the respondent’s relatives on a monthly basis and requested that they ask him to call the department. The respondent testified that he never received any messages to call the department. The record also contains at least five letters the department sent to him at the Metropolitan Detention Center in Brooklyn, New York, and the federal prison. The respondent claimed not to have received them.

The respondent telephoned the department in March, 2009, from the Metropolitan Detention Center. At that time, he expressed disagreement with the petitioner’s plan to terminate his parental rights, but he did not request visitation with the child. He also informed department personnel that he was being transferred to the federal prison, where he intended to engage in substance abuse and parenting programs.

On June 24, 2009, the respondent participated by telephone in an administrative case review dining which he informed department personnel that he had to complete seven to eight more weeks of a ten week parenting program and that he intended the next day to begin a 500 hour inpatient substance abuse program. At trial on September 9, 2009, the respondent testified that “I’m in [a] 500 hour . . . drug abuse program. And I’ve taken up parenting classes since I’ve been here.” As the finder of fact and the arbiter of credibility, the court was free to believe all, some or none of the respondent’s testimony. See In re Jaime S., 120 Conn. App. 712, 729, 994 A.2d 233, cert. granted on other grounds, 297 Conn. 915, 995 A.2d 954 (2010). Moreover, the respondent testified as follows in response to a question from the petitioner’s counsel:

“[The Petitioner’s Counsel]: By your own choice, you were not in a position to parent Katia when she was bom, correct?

“[The Respondent]: No, I wasn’t in aposition because at the time I was incarcerated. So, I couldn’t have been in a position.

“[The Petitioner’s Counsel]: And why were you incarcerated, specifically? . . .

“[The Respondent]: Possession of narcotics.”

In addressing the criteria required by § 17a-112 (k) the court found that the respondent is unable or unwilling to benefit from reasonable reunification efforts, his serious issues clearly and convincingly make him unable or unwilling to benefit from reasonable reunification efforts, he failed to comply with the steps ordered by the court and he has not been able to take full advantage of services, as he has been incarcerated for most of the current department involvement.

As we noted earlier, termination of parental rights may not be grounded on a respondent’s incarceration alone. On the basis of our review of the court’s complete memorandum of decision and the record, we conclude that the court’s findings with respect to the respondent’s failure to achieve sufficient rehabilitation are not based on incarceration alone. Perhaps the court did not express itself artfully, but the essence of its finding is that the respondent’s incarceration prevented him from complying with the court-ordered steps that he signed. Failure to achieve sufficient rehabilitation was not at issue in In re Juvenile Appeal (Docket No. 10155), supra, 187 Conn. 443 (termination of parental rights on ground of abandonment). That case, however, articulated the principle that controls the circumstances in this case.

Our Supreme Court stated: “The trial court was careful to indicate that in its view imprisonment alone does not constitute abandonment, and in this it was correct. See Matter of Adoption of Cottrill, 388 So. 2d 302, 305 (Fla. App. 1980) [imprisonment]; Matter of Adoption of Herman, 406 N.E.2d 277, 279 (Ind. App. 1980) [imprisonment]; Staat v. Hennepin County Welfare Board, 178 N.W.2d 709, 712-13 (Minn. 1970) [imprisonment; termination of parental rights]; In re Sego, 82 Wash. 2d 736, 740, 513 P.2d 831 (1973) [imprisonment; termination of parental rights]. On the other hand, the inevitable restraints imposed by incarceration do not in themselves excuse a failure to make use of available though limited resources for contact with a distant child.” (Emphasis added.) In re Juvenile Appeal (Docket No. 10155), supra, 187 Conn. 443.

The rule of law on which the respondent has based his claim initially was applied to termination of parental rights on the ground of abandonment, but since then it has been applied to other grounds for termination of parental rights. See, e.g., In re Hector L., 53 Conn. App. 359, 730 A.2d 106 (1999) (failure to achieve sufficient rehabilitation). Here, the termination of parental rights petition alleged the respondent’s failure to achieve a sufficient degree of rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, the respondent could assume a responsible position in the life of the child. See General Statutes § 17a-112 (j) (3) (B) (i).

The “inevitable restraints” imposed by incarceration are directly applicable to the facts of this case, in which the respondent was ordered to take advantage of services for substance abuse, drug testing and improved parenting skills. In addition, the respondent’s failure to keep department personnel apprised of his whereabouts and his failure to communicate through relatives, counselors or the telephone until 2009, supports the court’s finding that the respondent was unwilling or unable to benefit from reunification services. Steps were ordered for the respondent in August, 2006. It was not until almost three years later in June, 2009, that the respondent engaged in parenting classes and considered entering drug treatment in the federal prison. June, 2009, was three months prior to the trial on the termination of parental rights petition. The respondent failed to make use of the resources available to him in prison until the eleventh horn-. “Although the respondent could not avail himself of the rehabilitative programs available through the department because of his incarceration, it does not excuse his failure to use the resources offered by the department of correction. See In re Roshawn R., [51 Conn. App. 44, 53, 720 A.2d 1112 (1998)].” In re Hector L., supra, 53 Conn. App. 367-68.

In his brief, the respondent relies on In re Tailena R., Superior Court, judicial district of Tolland, Docket No. CP-07-012814-A (December 17,2009), for the proposition that incarceration alone is not sufficient to terminate parental rights. The facts of that case, however, actually support the court’s finding here. The court in In re Tailena R. stated: “[C]hild protection cases in Connecticut tend to view the whole parent-child relationship, pre- and postincarceration. Incarcerated parents have the ability to participate in the child protection proceedings. Counsel are appointed for them; usually visitation is available to the incarcerated parent in prison, and they are transported to the proceedings to fully participate. That has not been true in this case since the respondent is in California.” Id.

In In re Tailena R., the court, Foley, J., found that department personnel had been unable to offer services to that respondent, who was incarcerated in California, and that they were unable to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended, due to that respondent’s incarceration and the geographic distance between Connecticut and California. The In re Tailena R. respondent was to engage in services and did not do so, or did not report his efforts to the department, and due to his confinement was unable to maintain regular and consistent contact with his children. Judge Foley, therefore, found that the respondent had not achieved sufficient rehabilitation within the meaning of § 17a-112 (j) (3) (B) (i). Here, the evidence indicates that while the respondent was in prison in Connecticut, the departmental personnel facilitated visitation between the respondent and the child. When the respondent was moved out of state, department assisted visitation ended in part because the respondent’s social worker could not communicate with him, did not know where he was and he was, at one point, hundreds of miles from Connecticut in Cumberland, Maryland.

For all of the foregoing reasons, we conclude that the court’s finding that the respondent had failed to achieve sufficient rehabilitation within the meaning of § 17a-112 (j) (3) (B) (i) was not clearly erroneous and that the court’s finding is not predicated on the respondent’s incarceration alone.

II

The respondent’s second claim is that the court’s finding that the department made reasonable efforts to reunify the family was clearly erroneous. We disagree.

The respondent takes particular issue with the following sentence in the court’s memorandum of decision: “Considered carefully, the clear and convincing evidence shows that [the department] offered timely, appropriate and comprehensive services to the respondent parents to facilitate [their] reunification with [their] child and made reasonable efforts to reunite [them] with [their] child.” The respondent criticizes the court for not distinguishing the services offered to the mother and to him, and then argues that department personnel did not offer him any services. Although we agree that the court’s memorandum of decision would have been clearer if it had listed the services offered to each of the parents, the record does not support the respondent’s contention that department personnel offered him no services.

Significantly, the respondent has overlooked the language that immediately follows the court’s statement, to which he takes no exception. The court stated: “Based on this clear and convincing evidence of the circumstances now present in this case, the court finds that [the respondent] is unable and, or, unwilling to benefit from reasonable reunification efforts. General Statutes § 17a-112 (j) (1). His serious issues clearly and convincingly make him unable and, or, unwilling to benefit from reasonable reunification efforts. . . . The parents have been provided with many services to rehabilitate and return the child to their care, and the referrals were made in a timely manner to facilitate a successful reunification. They were referred to services multiple times to encourage cooperation. [The respondent] has not been able to take full advantage of services, as he has been incarcerated for most of the current [department] involvement.” (Citation omitted.)

Section 17a-112 (k) (2) requires the court to determine whether the department “has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended . . . .” “The word reasonable is the linchpin on which the department’s efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof. . . . [Reasonable efforts means doing everything reasonable, not everything possible.” (Internal quotation marks omitted.) In re Tabitha T., 51 Conn. App. 595, 600, 722 A.2d 1232 (1999).

The record in this case demonstrates that while the respondent was incarcerated in Hartford, department personnel facilitated visits between him and the child. Following the respondent’s transfer to a correctional facility in Rhode Island, Silas communicated with his family monthly and asked his family to have him contact the social worker. The department investigated members of the respondent’s family as a possible resource for the child but found that they did not qualify for licensure. Silas testified that she attempted to telephone the respondent at the Rhode Island correctional institution but the respondent had failed to list the department on his contact sheet. In addition, the petitioner entered into evidence photocopies of letters mailed to the respondent at various correctional institutions where he was incarcerated. On the basis of this record, we conclude that the court’s finding that the department made reasonable efforts to reunite the family was not clearly erroneous. Accord In re Jermaine S., 86 Conn. App. 819, 838-39, 863 A.2d 720, cert. denied, 273 Conn. 938, 875 A.2d 43 (2005).

m

The respondent’s third claim is that the court’s finding that he had failed to achieve sufficient personal rehabilitation within the meaning of § 17a-112 (j) (3) (B) (i) was clearly erroneous. We do not agree.

“Personal 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. . . . The statute does not require [a parent] to prove precisely when she will be able to assume a responsible position in her child’s life. Nor does it require her to prove that she will be able to assume full responsibility for her child, unaided by available support systems. It requires the court to find, by clear and convincing evidence, that the level of rehabilitation she has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date she can assume a responsible position in her child’s life.” (Internal quotation marks omitted.) In re Trevon G., 109 Conn. App. 782, 789, 952 A.2d 1280 (2008). “[T]he 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.” In re Danuael D., 51 Conn. App. 829, 840, 724 A.2d 546 (1999). The personal rehabilitation inquiry requires the court to obtain a historical perspective of the respondent’s child caring and parenting abilities. See In re Galen F., 54 Conn. App. 590, 594, 737 A.2d 499 (1999).

The substance of the respondent’s claim is that the court’s finding that his failure to achieve sufficient rehabilitation was based on the fact that the department failed to provide him with services or to initiate communication with him because he was incarcerated. This appears to be another way of arguing that the court terminated the respondent’s parental rights on the basis of his incarceration alone. As discussed in part I of this opinion, incarceration alone may not be considered a basis for the termination of parental rights. Nonetheless, incarceration imposes limitations on what the department and its social workers can do and what services it can provide for an incarcerated parent facing termination of his or her parental rights. Finally, the respondent ignores the fact he failed to abide by the court-ordered step, which he signed, to keep the department aware of his whereabouts.

The respondent also argues that even though the department did not provide him with services, he obtained services on his own. The only evidence in the record that the respondent attempted to address his substance abuse and parenting limitations is his testimony that he attended programs in the federal prison during the summer of 2009, three years after the court-ordered steps and three months before trial. The respondent’s efforts came too late to demonstrate personal rehabilitation sufficient to assume a responsible position in the life of the child. On the basis of the record before us, we conclude that the court’s finding that the respondent was not able to take full advantage of the services offered to him given his incarceration is not clearly erroneous. Moreover, at trial, the respondent himself conceded that he was not in a position to be a parent to the child because he was incarcerated for possession of narcotics.

At the time of trial, the child was three years and eight months old, and the respondent was not expected to be released to a halfway house in Hartford until April, 2010, when the child would be four years old. At that time, the respondent would not have housing suitable for the child, and he would not have demonstrated an ability to hold legal employment or avoid further contact with the criminal justice system. Moreover, the respondent would not have seen the child since she was an infant. The court found that the respondent’s substance abuse and lack of parenting skills were serious issues. The court therefore found that the respondent and the child would need significant visitation and that he would have to attend parenting classes to establish a parental bond. Also, although the respondent claimed to have participated in an inpatient substance abuse program, there was no evidence that he would be able to maintain sobriety when he was released from incarceration.

The court also found that the child had resided for almost two years with a preadoptive foster family where she was bonded to the other children living there and to her foster parents. She attended a preschool and was doing well. Given the child’s tender age and her need for stability and permanency, we conclude that there was clear and convincing evidence in the record that the respondent had not achieved the degree of personal rehabilitation that would encourage the belief that within a reasonable time, considering the age and needs of the child, he could assume a responsible position in the child’s life. We find that the record supports the court’s findings and that they are not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       The parental rights of the child’s mother were terminated by consent pursuant to § 17a-112 (i). The respondent mother is not a party to this appeal, and in this opinion we refer to the respondent father as the respondent.

       The respondent was ordered to comply with the following steps: keep all appointments set by department personnel, keep the child’s whereabouts and his whereabouts known to the department, participate in counseling and make progress toward identified treatment goals: parenting and individual, submit to substance abuse assessment and recommendations regarding treatment, submit to random drug testing, cooperate with court-ordered, evaluations, sign releases authorizing the department to communicate with service providers (the recommended service providers for parenting and individual counseling and substance abuse assessmenf/treatment were to be determined), secure and maintain adequate housing and legal income, no substance abuse, notify the department of changes in the composition of his household, maintain the child in Connecticut and visit with the child as often as the department permits. The respondent signed the ordered steps on August 16, 2006.

       General Statutes § 17a-112 (j) provides in relevant part: “The Superior Court . . . may grant a petition ... if it finds by clear and convincing evidence that ... (3) ... (B) the child (i) has been found by the Superior Court ... to have been neglected or uncared for in a prior proceeding . . . and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent . . . 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

       In the department’s April 24, 2006, summary of facts for the neglect petition, the department reported that the respondent was uncertain that he was the child’s father and requested a paternity test. The court ordered a paternity test that confirmed that the respondent is the father of the child.
      In the department’s May 23,2006, social study for the court, the respondent denied ever being married. At the time the mother reported being pregnant with their first child, the respondent told department personnel that he was dating another woman. At the time of his current incarceration, the respondent stated that he was in a relationship with that woman. At trial, the respondent testified that the woman who had been living in his apartment with him was a heroin addict.
      In an affidavit dated July 27,2006, department social worker Kenny Adorn attested that the mother had a history with the department dating to 1999. On October 30, 2004, the mother gave birth to a child, fathered by the respondent, who tested positive for illegal substances at birth. Adorn further attested that since the birth of the child at issue in this case to the date of the affidavit, the mother had lived a transient lifestyle and that the respondent was incarcerated and had not provided a plan for the care, welfare and safety of the child.

       Pursuant to Practice Book § 10-33 the petitioner claims that the respondent’s first claim may be moot, arguing that the court’s finding the respondent has serious issues is a second finding sufficient to conclude that he was unwilling or unable to achieve sufficient rehabilitation. In his appeal, the respondent did not claim that this finding by the court was clearly erroneous. The petitioner has argued that to prevail on appeal, the respondent must successfully attack both findings or his “unable or unwilling” claim is moot, citing In re Jorden R., 293 Conn. 539, 554-55, 979 A.2d 469 (2009) (where court makes both § 17a-112 (j) (1) findings that reasonable efforts were made and parent unwilling or unable to benefit from reasonable efforts, failure to challenge both findings on appeal implicates subject matter jurisdiction). We conclude that the court’s finding that the respondent had serious issues is not a separate and distinct finding but integral to its conclusion that the respondent failed to achieve sufficient rehabilitation due to his lack of availability.

       The court did not grant the respondent’s request.

       The record does not contain a description of the parenting classes or any evidence that the respondent completed them.

       “Abandonment is established by clear and convincing evidence that a parent has failed to maintain a reasonable degree of interest in or concern or responsibility for the welfare of the child. General Statutes § 17a-112 (j) (3) (A). The commonly understood general obligations of parenthood entail these minimum attributes: (1) express love and affection for the child; (2) express personal concern over the health, education and general well-being of the child; (3) the duty to supply the necessary food, clothing and medical care; (4) the duty to provide an adequate domicile; and (5) the duty to furnish social and religious guidance.” (Internal quotation marks omitted.) In re S.D., 115 Conn. App. 111, 122, 972 A.2d 258 (2009).