author: SULLIVAN, J.

text:
    STATE OF CONNECTICUT v. SHAWN JORDAN
    (AC 29848)
    Gruendel, Beach and Sullivan, Js.
    Argued September 21, 2010
    officially released May 31, 2011

      Mary Anne Royle, special public defender, for the appellant (defendant).

      Denise B. Smoker, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Chris A. Pelosi, senior assistant state’s attorney, for the appellee (state).
   Opinion

SULLIVAN, J.

The defendant, Shawn Jordan, appeals from the judgment of conviction, rendered after a jury trial, of one count of burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), two counts of kidnapping in the second degree in violation of General Statutes § 53a-94 (a), two counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1). On appeal, the defendant claims that (1) he is entitled to a new trial on the kidnapping counts because the trial court’s instruction did not comport with the requirement of State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), and (2) the trial court abused its discretion in refusing his request to instruct the jury on diminished capacity. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant and one of the victims, D, had known each other for nine years and had three children together. After the relationship ended, the defendant moved out of the home they had shared for over four years and returned his key. D also had the locks on the doors changed, but continued living in the home. D began dating E in April, 2004. In the early hours of June 19, 2004, the victims, D and E, were upstairs at D’s home when they heard someone on the stairs. When D got out of bed to investigate, a light turned on in the stairwell to reveal the defendant. The defendant then pushed past D and entered the bedroom, carrying a gun in one hand and a stick in the other, and after a brief verbal exchange, the defendant began hitting E in the head with the stick. Though both victims begged the defendant to stop, he continued beating E. When the defendant briefly was interrupted by his son, D tried to run past the defendant and out of the house. After she ran down the stairs and reached the door, the defendant caught her and pulled her back upstairs by her hair to the bedroom where E lay incapacitated on the floor. The defendant hit D on the head with the stick, causing her to slump over onto the ground. The defendant then ordered her to clean blood off the walls, and he got a bucket of water and rags for her to use. Although D was slipping in and out of consciousness, the defendant ordered her to keep cleaning.

While D was cleaning, the defendant continued to assault E, stomping on him and punching him. The defendant then forced E onto the bed and ordered D to sodomize him with a mop handle. When she refused, the defendant took out the gun and repeated the order. D complied, using very little force. The defendant then took the mop handle from D and continued to sodomize E with enough force to bend the handle. The defendant then ordered D to break the handle to make it jagged, and when she refused, he did it himself and reinserted it in E’s rectum. When E began to scream, the defendant hit him in the head with the gun. The defendant also sodomized E with the stick that he had used to beat him.

The defendant left the room and returned with salt or pepper, which he poured on E’s wounds. At some point during the night, he also urinated on E, poured bleach on him and took $500 from his pants pocket. The defendant then turned his attention to D, who he forced into the bathroom to take a shower, but because she could not stand, she lay in the bathtub. While she was there, she could hear that the defendant had returned to E and continued to stomp and to shout orders at him.

The defendant then ordered E to put on his pants and dragged him out of the house, leaving him across the street from the house on the strip of grass between the sidewalk and street. The defendant then returned to the house and moved D downstairs to the living room and laid her down on a sleeping bag while he went to clean the bedroom. When D asked the defendant to let her dial 911, he refused, but agreed to bring her to a hospital if she would promise not to implicate him in her injuries. The defendant then drove D to the hospital. E later was brought to the same hospital by ambulance. D eventually told the doctors what had caused her injuries, implicating the defendant.

I

The defendant first claims that he is entitled to a new trial on the two kidnapping counts because the court did not instruct the jury that a conviction for kidnapping requires a finding that the victim “is moved or confined in a way that has independent criminal significance, that is, the victim was restrained to an extent exceeding that which was necessary to accomplish or complete the other crime.” State v. Salamon, supra, 287 Conn. 547. The state does not dispute the applicability of Salamon to the present case, but contends that the court’s failure to so instruct was harmless because the state offered sufficient evidence such that no reasonable jury could have concluded that the restraint of the victims by the defendant was merely incidental to the other crimes of assault and sexual assault. We agree with the state.

On December 17, 2007, the court instructed the jury on the elements necessary for the state to prove kidnapping in the second degree. The defendant’s appeal was filed on May 2, 2008. In State v. Salamon, supra, 287 Conn. 509, officially released on July 1, 2008, our Supreme Court considered our kidnapping statutes, holding that “[o]ur legislature . . . intended to exclude from the scope of the more serious crime of kidnapping and its accompanying severe penalties those confinements or movements of a victim that are merely incidental to and necessary for the commission of another crime against that victim. Stated otherwise, to commit a kidnapping in conjunction with another crime, a defendant must intend to prevent the victim’s liberation for a longer period of time or to a greater degree than that which is necessary to commit the other crime.” Id., 542. The defendant asserts, and the state does not contest, that the holding in Salamon retroactively applies to cases pending prior to its resolution. See State v. Sanseverino, 287 Conn. 608, 620 n.11, 949 A.2d 1156 (2008).

Because the state makes no argument that the instructions given in this case comported with the holding in Salamon or that Salamon does not apply to this case, we need only determine whether the error was harmful to the defendant. “It is well settled that an instructional impropriety that is constitutional in nature is harmful beyond a reasonable doubt, and, thus a reversible impropriety, when it is shown that it is reasonably possible . . . that the jury [was] misled. . . . In other words, the test for determining whether a constitutional [impropriety] is harmless ... is whether it appears beyond a reasonable doubt that the [impropriety] complained of did not contribute to the verdict obtained.” (Citations omitted; internal quotation marks omitted.) State v. Hampton, 293 Conn. 435, 462-63, 978 A.2d 1089 (2009).

Since the release of the decision in Salamon, numerous cases have considered the question of whether a trial court’s failure to provide the instructions required by Salamon harmed the defendant in those cases. “In Sanseverino, we relied on our opinion in Salamon to reverse the defendant’s conviction of kidnapping in the first degree, reasoning that although the question of whether kidnapping may stand as a separate offense is one for the jury . . . under the facts of the present case, no reasonable jury could have found the defendant guilty of kidnapping in the first degree on the basis of the evidence that the state proffered at trial. . . .

“Relying on Salamon, in [State v. DeJesus, 288 Conn. 418, 953 A.2d 45 (2008)], the court also reversed the defendant’s kidnapping conviction. . . . There, the court found that because the jury was not instructed in accordance with Salamon concerning the crime of kidnapping, [t]he defendant therefore could have been convicted on the basis of conduct which, under Salamon, does not violate the kidnapping statute. . . . After reversing the defendant’s kidnapping conviction, DeJesus next considered the appropriate remedy for the instructional impropriety identified in Salamon and Sanseverino, and concluded that in such situations, the appropriate remedy ... is to reverse the defendant’s kidnapping conviction and to remand the case to the trial court for a new trial.” (Citations omitted; internal quotation marks omitted.) State v. Thompson, 118 Conn. App. 140, 157-59, 983 A.2d 20 (2009), cert. denied, 294 Conn. 932, 986 A.2d 1057 (2010).

In State v. Hampton, supra, 293 Conn. 456, the court determined that the lack of a Salamon instruction, though error, did not harm the defendant who was convicted of kidnapping in addition to other crimes. Similarly, in State v. Nelson, 118 Conn. App. 831, 986 A.2d 311, cert. denied, 295 Conn. 911, 989 A.2d 1074 (2010), this court affirmed the defendant’s conviction for kidnapping in the first degree, holding that the lack of a Salamon instruction was harmless error. Id., 856. In both State v. Hampton, supra, 463, and State v. Nelson, supra, 860, the victims were confined for several hours. By contrast, in State v. Thompson, supra, 118 Conn. App. 144, where the confinement of the victim lasted for no longer than fifteen to twenty minutes, this court held that it was “unable to conclude that the evidence . . . does not reasonably support a finding that the defendant’s restraint of the victim was or was not so inextricably linked to the underlying crime itself.” Id., 162. It therefore remanded the case for a new trial on the kidnapping charge. Id., 163.

The defendant argues that this case is distinguishable from Nelson and Hampton because the entire forty-five minute confinement of the victims was comprised of the defendant’s assaultive action. There was, therefore, no period of time during which the victims were restrained for a greater degree than was necessary to commit the assaults. He also argues that because the victims were incapacitated by the assaults, he did not prevent their liberation, but rather they were restrained as a result of their injuries. We are not persuaded.

Our Supreme Court repeatedly has reaffirmed the principle that a kidnapping does not require a minimum time period of confinement. See State v. Winot, 294 Conn. 753, 767, 988 A.2d 188 (2010). Thus, the fact that the entire incident only lasted for forty-five minutes is not dispositive here. We must look to the record to determine whether the evidence reasonably could support the conclusion that the defendant’s restraint of the victims was merely incidental to the assaults and sexual assault, and we conclude that it does not.

The record in this case shows that the defendant restricted the movement of the victims to a far greater degree than was necessary to assault them. The defendant correctly asserts that his assaultive actions were ongoing throughout the time he confined the victims; however, it is equally apparent that as he targeted one victim, the other was not free to leave. When D attempted to leave, the defendant dragged her back by her hair. He incapacitated her and brought her to a bathroom so that he could continue assaulting E.

The evidence further showed that when the defendant was not assaulting the victims, he controlled their movement and prevented them from leaving. He made them both clean blood off the walls. The record, therefore, does not allow the conclusion that the defendant’s actions in restraining the victims were merely incidental to the assaults and sexual assault.

Even if we assume that the defendant is correct that his assaults incapacitated the victims, thereby preventing them from leaving, such a fact would not negate the evidence showing that the defendant restrained the victims to a greater degree than was necessary to commit the underlying crimes. The defendant did not assault them and leave them incapacitated. Rather, the defendant used the fact that they were incapacitated to his advantage in order to be able to assault one while the other was unable to move away to safety.

On the basis of the evidence before it, no reasonable jury could have failed to conclude that the restraint was to a greater degree than was necessary for the commission of the assaults; therefore, as in Hampton and Nelson, we conclude that the error by the court in failing to instruct the jury in accordance with Salamon was harmless.

II

The defendant next claims that the court improperly refused to instruct the jury on the doctrine of diminished capacity, thereby impinging on the defendant’s constitutional right to present a defense and misleading the jury on the element of intent. He argues that D’s testimony that the defendant acted like “a maniac” while assaulting her and E was sufficient for a reasonable jury to conclude that he was so enraged that he could not form the specific intent required for the crimes charged, and he was, therefore, entitled to the instruction on diminished capacity as he requested. We disagree.

At trial, two witnesses testified about the defendant’s relationship with D, evidence that the defendant argues established that the two had an ongoing relationship that would have given rise to his intense rage upon seeing D with E in a bedroom at D’s home. Furthermore, both D and E testified that they were unable to reason with the defendant while he was attacking them, nor did he stop when his son asked him to stop. Finally, D testified that the defendant attacked her and E like “a maniac.” The defendant argues that this evidence was sufficient to warrant an instruction by the court on his diminished capacity to form the requisite intent.

In his request to charge, the defendant asked the court to instruct the jury on each of the seven charges for specific intent crimes that “[b]ased on the evidence that has been presented in this case the defense maintains that the effect on the defendant of finding E and [D] together limited or impaired his mental faculties at the time of the incident. This requires that I instruct you on the legal doctrine of diminished capacity as it applies to this case. . . .

“The doctrine of diminished capacity means that if the defendant, because of a limited or impaired mental capacity, did not have that specific intent to commit the acts which comprise the crime [charged] because of a limited or impaired mental capacity, then the element of intent would not have been proven in this case.” The court refused to give the requested instruction, instead giving the standard instruction on specific intent. The defendant properly preserved the claim by taking exception to the given charge after it was delivered by the court.

“Evidence with regard to a defendant’s mental capacity is relevant in any case where a specific intent is an essential element of the crime involved .... Such evidence is admitted not for the purpose of exempting a defendant from criminal responsibility, but as bearing upon the question of whether he possessed, at the time he committed the act, the necessary specific intent, the proof of which was required to obtain a conviction.” (Citation omitted; internal quotation marks omitted.) State v. Pagano, 23 Conn. App. 447, 449, 581 A.2d 1058, cert. denied, 217 Conn. 802, 583 A.2d 132 (1990).

The defendant in the present case was charged with several specific intent crimes, and the defendant requested the diminished capacity instruction for each of the charges. “An instruction on diminished capacity would be warranted, therefore, if sufficient evidence was introduced to justify it. . . .

“The state had the burden of proving the element of intent beyond a reasonable doubt. ... To warrant consideration of diminished capacity, however, the defendant must have presented evidence [that] might have raised a reasonable doubt as to the existence of the specified mental state.” (Citations omitted; internal quotation marks omitted.) Id., 449-50.

In the present case, the court correctly concluded that the defendant was not entitled to the instruction on diminished capacity. The evidence that the defendant highlighted could only reasonably prove that he was very angry, but it reveals nothing about his capacity for forming intent. The defendant cites no case, and research reveals none, for the proposition that rage, unconnected to any underlying mental disease or defect, falls within the doctrine of diminished capacity. We also do not agree with the defendant’s argument that the jury was capable of forming that conclusion on its own without the help of expert testimony. Even if we agree with the defendant’s interpretation of the law that an expert is not always needed to establish a diminished capacity, the essential missing element in the present case is a connection between the state of the defendant’s mind and his capacity for forming the requisite intent.

In conclusion, the court’s instruction concerning specific intent could not have reasonably misled the jury into believing that it did not need to find specific intent in order to convict the defendant. The instruction left the jury free to consider all of the evidence, and did not limit it from considering whether, given what it knew of the defendant’s state of mind, he could have formed the specific intent to commit the crimes charged.

The judgment is affirmed.

In this opinion the other judges concurred.

       In accordance with our policy of protecting the privacy interests of the victims of sexual assault, we decline to identify the victims or others through whom the victims’ identities may be ascertained. See General Statutes § 54-86e.

       The court explained that “ ‘[a]bduct’ means to restrain a person with the intent to prevent his or her liberation by using or threatening to use physical force or intimidation. The defendant does not need to actually use force; he need only threaten the use of force in such a manner that the complainant or complainants reasonably believed that the force would be applied to him or her if he or she sought to escape. . . . ‘Restrain’ means to intentionally restrict a person’s movement in such a manner as to interfere substantially with his or her liberty by confining him or her in some place. This could either be a place where the restraint began or to a place where he or she had been moved or has been moved. Abduction and restraining must be intentional. There must be an intent to interfere substantially with the other person’s liberty and an intent to prevent that person’s liberation by using or threatening the use of physical force or intimidation.”

       Jessica Santiago testified that she is the former girlfriend of the defendant’s brother and, therefore, knew both the defendant and D at the time of the incident. Santiago stated that a few days prior to the alleged crimes, D introduced E to her as her boyfriend, and asked Santiago not to mention to E that the defendant “existed in her life still.” D also told Santiago that she would make the defendant pay for what he had done to her.
      Barbara McNair also testified for the defendant. She described being present at a family gathering that had occurred on June 18, 2004, testifying that both the defendant and D were at the same gathering. She further stated that she overheard a conversation between D and the defendant in which they agreed to meet later at D’s house.

       The court stated: “Intent relates to the condition of mind of the person who commits the act, their purpose in doing it. The law recognizes two types of intent, general intent and specific intent. General intent refers to engaging in conduct voluntarily but does not require that the action be taken with the objective of causing a specific result. On the other hand, specific intent is goal oriented conduct.
      “As defined by our statutes, a person acts intentionally with respect to a result or to conduct when their conscious objective is to cause such result or to engage in such conduct. General intent is the intent to engage in conduct. Specific intent refers to and requires proof of engaging in conduct to achieve a specific result.”

       The defendant’s argument, as the trial court noted, appears more akin to an extreme emotional disturbance defense. Extreme emotional disturbance is an affirmative defense that does not negate intent—in order to even consider the defense, the jury must first conclude that the defendant had the requisite intent to commit the crime charged. See D. Borden & L. Orland, 5 Connecticut Practice Series: Criminal Jury Instructions (4th Ed. 2007) § 6-3, p. 503.


source: Caselaw Access Project

author: FLYNN, J.

license: Public Domain

text:
    IN RE GIANNI C. ET AL.

    (AC 32259)
    Beach, Bear and Flynn, Js.
    Argued March 7
    officially released May 31, 2011

      Thomas F. Mitola, for the appellant (respondent mother).

      Renee Bevacqua Bollier, assistant attorney general, with whom, on the brief, were Richard Blumenthal, former attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

      Howard J. Wicker, for the minor children.

       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

FLYNN, J.

The respondent mother, Carmen C., appeals from the judgments of the trial court terminating her parental rights as to her minor children, Gianni C. and Jada G. On appeal, the respondent claims that the court improperly determined that she had failed to achieve a sufficient degree of personal rehabilitation pursuant to General Statutes § 17a-112 (j) (3) (B) (i). The respondent argues that the evidence in the record does not support the court’s determinations. We disagree and, therefore, affirm the judgments of the trial court.

The record reveals the following facts and procedural history. This matter came to the attention of the department of children and families (department) on December 9, 2006, after the respondent was arrested for participating in the armed robbery of a CVS pharmacy. The police notified the department, and the petitioner, the commissioner of children and families, invoked a ninety-six hour hold; see General Statutes § 17a-101g; on both children and, subsequently, the court entered an order of temporary custody in favor of the petitioner. On February 15,2007, the court adjudicated the children uncared for and committed them to the custody of the petitioner. The court approved a permanency plan of adoption on December 12, 2007. Following a criminal trial, in September, 2007, the respondent was convicted of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and sentenced to nine years imprisonment, execution suspected after five years to serve, and three years probation, with a maximum release date in 2011. Following her arrest, the respondent was incarcerated from December, 2006, through February 17, 2010, at which point the respondent was released to a halfway house.

On February 11, 2008, the petitioner filed a petition pursuant to § 17a-112 to terminate the parental rights of the respondent and the father, Gabriel A., as to Gianni, on the grounds of abandonment (father), failure to rehabilitate (mother), and no ongoing parent-child relationship (father). On that same date, the petitioner also filed a petition to terminate the parental rights of the respondent and the father, Luis G., as to Jada, on the grounds of failure to rehabilitate (father and mother), and no ongoing parent-child relationship (father and mother). On April 9, 2010, the court found, by clear and convincing evidence, that the respondent had failed to achieve a sufficient degree of 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 the life of her children. The court terminated the parental rights of the respondent after finding that doing so was in the best interest of both Gianni and Jada. This appeal followed.

Section 17a-112 (j) provides in relevant part: “The Superior Court . . . may grant a petition filed [for termination of parental rights] if it finds by clear and convincing evidence that (1) the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent ... (2) termination is in the best interest of the child, and (3) . . . (B) 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 . . . 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 . . . .”

“A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. ... In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights [under § 17a-112 (j)] exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase.” (Internal quotation marks omitted.) In re Sole S., 119 Conn. App. 187, 190-91, 986 A.2d 351 (2010). In the dispositional phase, “the emphasis appropriately shifts from the conduct of the parent to the best interest of the child.” In re Romance M., 229 Conn. 345, 356-57, 641 A.2d 378 (1994). The best interest determination also must be supported by clear and convincing evidence. In re Mia M., 127 Conn. App. 363, 375, 14 A.3d 1024 (2011).

“Our standard of review on appeal from a termination of parental rights is limited to whether the challenged findings are 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. . . . [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 Sole S., supra, 119 Conn. App. 191.

The court found the following relevant facts. Gianni was bom on November 2, 2001. Jada was bom on October 30, 2004. The respondent has been known to the department since 2004 when Gianni suffered a broken leg while in her care. At that time, the respondent was residing with the father of Jada. The case ultimately was closed after the respondent cooperated with referrals for parenting classes and domestic violence counseling.

The children have had numerous placements since entering the department’s care in December, 2006. They were placed in a preadoptive therapeutic foster home that was licensed by Boys and Girls Village. In December, 2008, on the basis of an allegation by Jada that she had been sexually abused by a family member of a foster parent, the children were moved to the Boys and Girls safe haven. Following the removal, Gianni’s godmother, Janet Q., increased her contact with the children and visited the children two to three times per week at the Boys and Girls safe haven, taking them to therapy, and taking them to her home on weekends. Janet Q. had been involved with the children since birth, and she continued to maintain a close connection with them. The children referred to her as either their godmother or sometimes their grandmother. In March, 2009, the department pursued licensure and placement of both children with Janet Q., and the permanency plan for both children became adoption by Janet Q.

In September, 2008, the respondent participated in a court-ordered psychological evaluation with Nancy Randall, a psychologist. The respondent reported to Randall a history characterized by physical abuse by her parents and sexual abuse by her brother and some of her male cousins. She further reported a relationship with Jada’s father that involved domestic violence. Additionally, the respondent reported that prior to her incarceration she had been smoking marijuana almost daily since she was fifteen years old to avoid the nightmares that she had about the negative things that had happened in her life. In the evaluation, the respondent also discussed the armed robbery that led to her arrest, conviction and incarceration. The respondent reported that she had tried to disengage herself from the robbery plans but that her brother made her go through with it and her children needed winter coats.

Gianni and Jada also participated in court-ordered psychological evaluations with Randall. Randall reported that the personality testing results of Gianni were consistent with that of a child who had been exposed to incidents of domestic violence and high levels of conflict and anger. During the interactional session with the respondent, Gianni appeared to be angry with the respondent at times, while at other times he appeared to enjoy the time he spent with her. Randall reported that the interactional session with Jada was a positive one, although Jada quickly walked away from the respondent as soon as the social worker arrived to pick up the children.

Randall concluded at the end of the evaluation that given the length of time that the children already had been out of her care, and their ages, it would not be beneficial for them to wait such a long time to have an opportunity to work toward a significant relationship, because the children were in need of permanency in their lives, to allow them to achieve optimal emotional stability.

On November 12, 2008, Randall testified at trial that her biggest concerns were whether the respondent “could make it on the outside and the length of time” it would take for her to be released from incarceration. Randall was concerned that, based on the respondent’s maximum release date, the respondent would have been separated from the children for five years, and, in the interim, that the children were in limbo. Randall also stated that, even if the respondent were released six months from the date of trial testimony, November 12, 2008, it would be too long to make the children wait for permanency. Randall farther maintained that the respondent would need a period of time in the community outside the structure of incarceration to determine whether she could make appropriate choices for herself and for her children. Additionally, Randall stated that it was not clear what types of memories Jada had of her mother, as she was just two years old when the respondent was incarcerated. Randall also testified that Gianni is ambivalent about his relationship with his mother.

We now address the respondent’s principal claim on appeal, namely, that the court improperly determined that there was sufficient evidence to find that she had failed to achieve such degree of personal rehabilitation as would encourage the belief that she could assume a responsible position in the life of her children within a reasonable time as § 17a-112 (j) (3) (B) requires.

“Personal rehabilitation refers to the reasonable foreseeability of the restoration of a parent to his or her former constructive and useful role as a parent, not merely the ability to manage his or her own life. . . . In conducting this inquiry, the trial court must analyze the respondent’s rehabilitative status as it relates to the needs of the particular child. . . . The trial court must also determine whether the prospects for rehabilitation can be realized within a reasonable time given the age and needs of the child. ... [A] trial court’s finding that a parent has failed to achieve sufficient rehabilitation will not be overturned unless it is clearly erroneous . . . .” (Citations omitted; internal quotation marks omitted.) In re Ellis V., 120 Conn. App. 523, 529, 992 A.2d 362 (2010). “In making its determination, the court may rely on events occurring after the date of the filing of the petition to terminate parental rights when considering the issue of whether the degree of rehabilitation is sufficient to foresee that the parent may resume a useful role in the child’s life within a reasonable time.” (Internal quotation marks omitted.) In re Keyashia C., 120 Conn. App. 452, 457 n.12, 991 A.2d 1113, cert. denied, 297 Conn. 909, 995 A.2d 637 (2010).

In its memorandum of decision, when addressing the issue of rehabilitation, the court found the following. Since the respondent’s incarceration, she had taken advantage of numerous programs aimed at addressing a variety of issues, including her judgment, self-confidence, choices in men and intrapersonal family issues. The court found that the respondent had demonstrated her desire to change her behavior and that she was seen as a role model for other inmates and was very supportive of others in their mutual quest for rehabilitation. Elizabeth Allen and David DeCostanza, therapists available to the respondent while incarcerated, testified that the respondent had become a different person. While incarcerated, the respondent also earned the praises of various department of correction officers and a captain at the detention facility where she was incarcerated. It is undisputed that the respondent was a model of rehabilitation while incarcerated and did everything that was asked of her, and more.

Although the court recognized the respondent’s exemplary performance while incarcerated, it also credited Randall’s opinion that she was not surprised that the respondent had excelled in a highly structured environment. Randall opined that once the respondent was released, she would need to work on caring for herself and meeting her own needs, which had been difficult for her to do in the past. Thus, the mere passage of time while in prison was a factor, but it was not the only basis on which the court made its determination that the respondent had not achieved sufficient rehabilitation. The court agreed with Randall’s assessment that the respondent would need to demonstrate that she could maintain herself in the community, with or without supports, for a reasonable period of time before attempts at reunification were warranted. In this vein, the court evaluated the respondent’s past problems when not in a structured environment. The court noted that in addition to the respondent’s difficulty accepting responsibility for her arrest, conviction and incarceration, the respondent also had trouble in the past interacting with her family. In support, the court cited Randall’s September, 2008 report stating that the respondent acknowledged that there had been times when her family took advantage of her and caused problems in her life. The report indicated that the respondent had difficultly interacting with her family, standing up for herself and saying “no” when it was needed. The report also stated that the respondent told Randall that the robbery was her brother’s idea and that he talked her into it. The court found that in the past, the respondent had allowed herself to become the periodic caretaker of numerous children of her family members, she had tolerated her family’s having driven her husband away, and she had allowed her own children’s needs to suffer because of her feelings of needing to take care of everyone else.

The respondent’s difficulties in the past were not the only factor the court used to make its determination that she had failed to achieve sufficient rehabilitation under § 17a-117 (c) (3) (B) (i). In contemplating the prospects for rehabilitation within a reasonable time, the court considered that the respondent would need time to demonstrate that she could maintain herself in the community, with or without supports, for a reasonable period of time before attempts at reunification were warranted. The court determined that the respondent would need at least one year to reintegrate back into the community and demonstrate that she could function appropriately, with or without supports. When the respondent was asked what her plans were upon release, she stated that she planned to continue with therapy, obtain employment, secure adequate housing and go back to school. The court acknowledged that the respondent’s overall goal was to reunite with her children, and noted that she recognized that she must first obtain and maintain these objectives before she could be reunited with her children. As of the last date of trial, however, it was unclear when the respondent would be able to start working toward actively achieving these objectives. As of the last date of trial, the respondent had not yet been granted parole. If and when parole were granted, only then would she be free to pursue her goal of reunification. The court found that if she were not paroled, however, she would not be discharged from department of correction custody until December, 2010, her maximum release date. The court found that the passage of time and the uncertainty of how the respondent would do when she was not in a structured environment did not encourage a reasonable belief that the respondent could assume a responsible position in the lives of the children, either at the present time or in the foreseeable future.

We acknowledge that the respondent made great efforts and made certain progress while incarcerated. Rehabilitation, however, cannot be viewed in a vacuum. Section 17a-117 (c) (3) (B) (i) required the court to look at the respondent’s rehabilitative status as it related to the needs of both children. In this step of the process, the court made certain findings regarding the best interests of the children. The court noted that Gianni had just become five years old and Jada had just become two years old when their mother was incarcerated in December, 2006. At the time of the trial court’s decision in the present case, Gianni was eight and Jada was five. Thus, Gianni and Jada had been out of the respondent’s care since ages five and two, respectively. During this period, the children had endured multiple placements. They had been in a number of foster home placements, including one removal based on allegations made by Jada of sexual abuse, and both children have specialized needs. The court found that this uncertainty was detrimental to the well-being of the children. The court noted that during this period, Gianni exhibited defiant behaviors, enuresis and stealing, and was receiving counseling to address his anxiety and adjustment disorders. The court also noted that Jada was receiving services from a Birth to Three program due to her apparent lack of stimulation. In light of these facts, the court properly gave considerable weight to the minor children’s pressing need for permanence and stability. Although the court acknowledged that the respondent had made tremendous strides, given what the children had endured for the last three plus years, the court found that to allow the respondent additional time to rehabilitate or to connect with the children would further delay permanency. The court concluded that every additional day of delay in permanency would not be in the best interests of these children. The court had to make a judgment whether the respondent was likely to rehabilitate and to reunify with the children in a reasonable time period, and, on the basis of the record before it, the court was not able to reach that conclusion.

The court had the opportunity to observe the parties and the evidence and make credibility determinations. We cannot reweigh the evidence or resolve questions of credibility in making such a determination. State v. Melillo, 17 Conn. App. 114, 117, 550 A.2d 319 (1988). On the basis of the testimony of all the witnesses and a review of all the evidence, the court did not believe that the respondent could assume a responsible position in the lives of the children. The respondent has not shown that the court’s findings were clearly erroneous in the difficult decision it had to make. In its thorough and thoughtful decision, the court found by clear and convincing evidence that the children’s best interests would be served by granting the petitions to terminate the respondent’s parental rights.

The judgments are affirmed.

In this opinion the other judges concurred.

       The trial court, in addition to terminating the parental rights of the respondent mother as to her minor children, Gianni C. and Jada G., also terminated the parental rights of the children’s fathers. Because neither father has appealed, we refer in this opinion to the respondent mother as the respondent.

       At oral argument, counsel for the minor children represented that the children have been placed with Janet Q. for quite some time, and that the children are satisfied and secure there.

       Despite stating these objectives, it was uncertain how she would achieve them. When the respondent testified on this issue in March, 2010, she stated that she had not yet decided what she was going to do, but was going to consider her options.

       Randall, in her 2008 report, reported that the personality testing results of Gianni were consistent with that of a child who had been exposed to incidents of domestic violence and high levels of conflict and anger in that he is more likely to view anger and aggression as normal aspects of interpersonal relationships. Randall also noted that Jada’s relationship with her mother is a visiting one and does not rise to the level of a psychological parent.

       The court agreed with Randall’s conclusion that termination would not be in the children’s best interests only if the respondent’s release from incarceration was imminent, and it was not. “In her January, 2009 update, Randall credited [the respondent] with great strides made while incarcerated and even recommended that termination proceedings be delayed or that the [termination of parental rights] petition be withdrawn ‘if the [respondent’s] release from prison was imminent’ .... However, in the absence of such an imminent release . . . Randall continued to opine that, given the length of time the children had already been in care, termination of parental rights continued to be in their best interests . . . .” (Citations omitted.)