67 Conn. App 742 (2002)
Abuse and Neglect :
CT Appelate Division
Jan 29, 2002

The respondent father appealed the decision by the trial court to terminate his parental rights with respect to his two minor children. The father’s main claim was that that the court erred in denying his motion to amend the petition to terminate parental rights. The respondent claimed that under Practice Book S 35-1(c), the trial court could not and did not consider events subsequent to the filing of the petition in determining whether he had achieved personal rehabilitation, thus committing error. Finally, respondent claimed that the trial court improperly admitted hearsay evidence that was contained in a social study offered by Commissioner. The Appellate Court rejected all three arguments and affirmed the termination order.

Respondent two minor children were born in 1994. At birth, the children both tested positive for cocaine. At that time, the father denied abusing illegal substances and refused DCF’s offer to provide him with substance abuse treatment. In April of 1995, respondent was arrested for robbery, was sentenced to fifteen years, with execution suspended after eight years, and three years probation. In July 1996, the Commissioner) filed neglect petitions with regard to the two children and obtained temporary custody in September of 1996. In March 1997, after a paternity test confirmed that he was indeed the father, the father began monthly visitation with his children at the prison. These visits ended in August of that same year as a result of a disciplinary action. In June 1998, the commissioner filed TPR petitions. The trial was held in April and May of 2000. Subsequent to the trial, however, the defendant was released from prison, living with his sister, and working a full-time and part-time job. The children, however, exhibited increased emotional and behavioral problems and demonstrated an opposition toward the respondent. Furthermore, they had bonded well with their foster family who intended to adopt them.

The Appellate Court rejected respondent's first argument that it was procedurally improper under Practice Book S 35-1(c) to grant his motion to amend the petition to terminate paternal rights. Practice Book S 35-1 (c) does provide any party with the opportunity to amend the petition. However, the option to amend is usually invoked by the petitioner, as noted by the Appellate Court. Furthermore, respondent's proposed amendment sought to add allegations that he had been discharged from prison, was fully compliant with all the conditions of his probation and was employed full time, all of which occurred after the filing of the petition. Since the petitioner has the burden of proving the allegations of the petition, the proposed amendments would have required the petitioner to prove the defenses that the respondent wanted asserted, forcing the Commissioner to prove allegations that she did not necessarily believe. Considering this burden, the Appellate court found that to allow the respondent to amend the petition would work a substantial injustice to the commissioner.

The court also rejected the father’s claim that the trial court could not and did not consider events that occurred after the filing date of the petition in the adjudicatory phase of the termination proceedings as a result of the denial of the motion to amend. The court noted that facts occurring after the date that the petition is filed can be heard in termination petitions brought under S 17a (c)(3)(B) in determining whether a respondent has achieved a sufficient degree of personal rehabilitation within the meaning of the statute. The court found that events that occurred subsequent to the filing of the petition to terminate could and were considered by the trial court. The trial court used them to determine that respondent had failed to achieve personal rehabilitation sufficient to foresee that he "may resume a useful role in the child's life within a reasonable time."; They noted that his incarceration resulting from his own criminal conduct established that he failed to rehabilitate and that even if his parole for January 2000 was certain in June 1998, the end of the adjudicatory period, he would not have been able to assume a responsible position in the children's lives in a reasonable time.

The court rejected the father’s last claim regarding hearsay evidence. The court found that even if admittance of a letter within a report was improper, the error was harmless, and the admitted evidence was cumulative in nature.
(AA 3/02)

DocID: 2002012901 ExtDocID: 20020129A

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