In re Jessica M.

HENNESSY, J.,

concurring. I concur in the result reached by the majority but write separately to address concerns I have about the interpretation of General Statutes (Rev. to 1995) § 17a-112 as set forth in the majority opinion.

*245 Initially, it is important to note that there are two ways in which the department of children and families (department) may petition for the termination of parental rights in accordance with § 17a-112: (1) by filing coterminous petitions or (2) by filing a petition for termination of the parental rights in a child presently committed to the department. These methods are set forth in the statutes and rules of practice as well as on the form that the department files when it initiates a coterminous proceeding. 1

In this appeal, the petitions praying for the termination of parental rights were filed as coterminous petitions as authorized by General Statutes (Rev. to 1995) § 17a-112 (e). 2 The filing of coterminous petitions requires that one petition allege that the child is neglected, and that the accompanying petition request, if neglect is found, that the parental rights in the child be terminated. In order to be a coterminous proceeding, these petitions must be filed simultaneously or in close proximity in time. The other manner of petitioning for the termination of parental rights under § 17a-112 (b) *246 is to request the termination of parental rights in a child who is currently committed to the department as a result of a previous adjudication of neglect.

The following facts must be emphasized. On March 10, 1995, an order of temporary custody was granted by the trial court, Keller, J. The accompanying neglect petition alleged that Jessica M. was neglected because “on 3/9/95, the Department of Children and Families received a referral from a battered Women’s Shelter. Referral stated that mother came to the shelter the day before because of spousal abuse. Child Jessica, age four years, had bruises on back, buttocks, hip and back of legs. Mother told caller she had fractured the child’s skull previously and she was placed in the department’s care. Caller further reported that mother disclosed hitting the child on the head on Monday.”

On March 29, 1995, the department alleged that the respondents’ parental rights should be terminated because (1) Jessica had been found in a prior proceeding to be neglected and her parents had failed to achieve such degree of personal rehabilitation or, in the alternative, (2) Jessicahad been denied by an act of commission or omission the care, guidance or control necessary for her physical and emotional well-being. 3

In the present case, the child was not committed to the department as a neglected child when the petitions were filed. Jessica was in the care of the department by way of an order for temporary custody, the request for which was filed simultaneously with the petition alleging *247 neglect. The neglect petition alleged that the child was neglected because she was permitted to live under conditions, circumstances or associations injurious to her well-being and, as a result, was being denied proper care and attention, both physically and emotionally. The trial court found the child neglected, by a fair preponderance of evidence, as a result of injuries inflicted on her on March 9, 1995, by her parents. Thereafter, in its written decision, the trial court proceeded to commit the child to the department for a period of one year.

Under the statutory scheme, the commitment of Jessica for one year would deprive the trial court of jurisdiction to render any further disposition regarding the termination of parental rights. Section § 17a-112 (e) authorizes the Superior Court in lieu of granting the neglect petition and committing the child to the custody of the department, to grant the petition for termination. 4 Despite this, the trial court considered the petition to terminate parental rights. We must assume that the commitment of Jessica by the court was in anticipation and a rejection of the request for termination of parental rights and, therefore, that the trial court properly considered both grounds alleged by the department.

The first ground for termination considered by the court was failure to achieve rehabilitation. For a court to order termination on that ground pursuant to § 17a-112 (b) (2), the child must have been found to be *248 neglected in a prior proceeding and the parents must have failed to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, they could assume a responsible position in the life of the child.

The majority assumes that the requirement that the child must have been found neglected in a prior proceeding means that the child was found neglected any time in the past. Common sense and case law suggest that the phrase “in a prior proceeding” means the proceeding that immediately precedes and results in the filing of the petition to terminate parental rights. See footnote 6.

Failure to achieve rehabilitation should not be considered as a ground for termination in a coterminous proceeding because there is no “prior proceeding” to mark the beginning of the period in which the parent must achieve rehabilitation. General Statutes (Rev. to 1995) § 17a-112 (b) provides that the parental rights of a non-consenting parent may be terminated if after “an extended period of time ... (2) the parent of a child who has been found by the superior court to have been neglected or uncared for in a prior proceeding has failed to achieve such degree of personal rehabilitation . . . .” (Emphasis added.) Failure to rehabilitate is defined as the failure of a parent to achieve expectations following the adjudication and disposition of the prior neglect petition. See In re Michael M., 29 Conn. App. 112, 125-26 , 614 A.2d 832 (1992); In re Migdalia M., 6 Conn. App. 194, 206, 504 A.2d 533 , cert. denied, 199 Conn. 809 , 508 A.2d 770 (1986).

The grounds for termination set forth in subsection (b) must be alleged after an “extended period of time” *249 unless subsection (c) 5 has been satisfied. A plain reading of the statute reveals that the phrase “prior proceeding” refers to the determination of neglect that immediately precedes the filing of the termination petition. “In practice, a parent’s rehabilitation is often measured against the expectations established by the court following adjudication and disposition of the prior neglect petition.” P. Chill, The Law of Child Abuse and Neglect in Connecticut (1997), p. 147. In a coterminous proceeding, there is no period of time to observe the parents and determine if they have or have not achieved expectations following the adjudication of the neglect petition.

“It is well settled that a statute must be applied as its words direct. . . . All Brand Importers, Inc. v. Dept. of Liquor Control, 213 Conn. 184, 194 , 567 A.2d 1156 (1989).” (Internal quotation marks omitted.) Pascarelli v. Moliterno Stone Sales, Inc., 44 Conn. App. 397, 400 , 689 A.2d 1132 , cert. denied, 240 Conn. 926 , 692 A.2d 1282 (1997). Statutes should be given their plain meaning. In a coterminous proceeding an insufficient amount of time passes in which to evaluate the parents’ attempt to achieve rehabilitation and, therefore, I conclude that the ground of failure to achieve rehabilitation is inapplicable.

A search of the case law of our state did not uncover any termination of parental rights judgment in which coterminous petitions were granted on the ground of failure to achieve rehabilitation. 6 Failure to achieve *250 rehabilitation, by its very terms, suggests that there are problems affecting the child that have been identified and that over a period of time have not been corrected so as to restore the parent to his or her prior constructive and useful role as a parent. Stating it simply, the statutory scheme requires that the occurrence of events or pattern of behavior that bring about state intervention be followed by a period of corrective action. If the parent fails in this endeavor, the failure is ground for the permanent removal of the child from the parent.

In the present case, if the department was successful in its goal to terminate parental rights on the basis of failure to achieve rehabilitation, the respondents would have been denied the opportunity to achieve rehabilitation provided by statute. When coterminous petitions are filed, the department is requesting that the court *251 waive any time constraints so that the parental rights can be terminated without taking action to reunite parent and child. To allow failure to achieve rehabilitation to be relied on in a coterminous situation would not allow sufficient time to pass between the finding of neglect and the termination of parental rights so that the court could make a reasonable determination of the parent’s success or failure at attempted rehabilitation. 7

The prior proceeding on which the department relied to invoke the jurisdiction of the trial court was the finding of neglect four years earlier, that proceeding having resulted in a six month commitment to the department. It is undisputed that during the three and one-half years since that commitment ended, there has been no state involvement with this family and no complaints made to the department. If the requirement of being found neglected in a prior proceeding is not tied to the petition to terminate parental rights when considering failure to achieve rehabilitation, the parents will be denied the statutory opportunity to achieve rehabilitation. Further, after neglect has been found upon the occurrence of an event requiring state intervention, the state’s filing of coterminous petitions and the event that brought about the finding of neglect years before can be used as evidence of failure to achieve rehabilitation. This does not make sense nor does it comport with the statutoiy scheme in that it ignores the meaning of rehabilitation.

*252 For these reasons, I would exclude the ground of failure to achieve rehabilitation from § 17a-112 (b) (2) as far as it applies to the filing of coterminous petitions. I agree with the majority in upholding the judgment of the trial court that the petitioner failed to prove by clear and convincing evidence that Jessica had been denied by an act of omission or commission the care, guidance or control necessary for her physical and emotional well-being.

The form for the termination of parental rights is created pursuant to the authority under General Statutes §§ 17a-112, 45a-715 and 45a-717. The portion of the form that invokes the jurisdiction of the trial court so that it may consider the termination petition states:

“Jurisdiction based on:

_Child committed to the custody of the Commissioner of the Department of Children and Youth Services. (Gen. Stat. 17a-112)

_Neglect Petition accompanied by Petition for Termination of Parental Rights (Coterminous Petitions'). (Gen. Stat. 17a-112).”

General Statutes (Rev. 1995) § 17a-112 (e), now § 17a-112 (f), provides:

“Any petition brought by the commissioner of children and families to the superior court, pursuant to subsection (a) of section 46b-129, may be accompanied by ... a petition for termination of parental rights filed in accordance with this section with respect to such child, notwithstanding that such child has not been committed to the commissioner of children and families. . . . The superior court, after hearing, in accordance with the provisions of subsection (b) of this section, may, in lieu of granting the petition filed pursuant to section 46b-129, grant the petition for termination of parental rights as provided in section 45a-717.”

The petition alleges that the reasons for termination have existed for “not less than one year.” The facts included in the record, which were before the trial court, fail to support the conclusion that the conditions leading up to the filing of the neglect petition had existed for more than one year. This issue was not raised by either party and, therefore, for purposes of this discussion, I will limit my remarks to the facts of this case, specifically that the termination petition was based on the facts as found by the department on March 10, 1995.

Practice Book (1998 Rev.) § 33-12, formerly § 1046.1, sets forth the procedures as follows: “When coterminous petitions are filed, the judicial authority first determines whether the child is neglected, uncared for or dependent by a fair preponderance of the evidence; if so, then the judicial authority determines whether statutory grounds exist to terminate parental rights by clear and convincing evidence; if so, then the judicial authority determines whether termination is in the best interest of the child by clear and convincing evidence. If the judicial authority determines that termination grounds do not exist or that termination is not in the best interest of the child, then the judicial authority may consider any of the dispositional alternatives available under the neglect, uncared for or dependent petition by a fair preponderance of the evidence.”

General Statutes (Rev. to 1995) § 17a-112 (c) provides that “[t]he court may waive the requirement that one year expire prior to the termination of parental rights if it finds from the totality of the circumstances surrounding the child that such a waiver is necessary to promote the best interest of the child. ...”

See, e.g., In re Baby Girl B., 224 Conn. 263 , 618 A.2d 1 (1992) (coterminous petition alleging abandonment); In re Valerie D., 223 Conn. 492 , 613 A.2d 748 (1992) (coterminous petition alleging abuse); In re Felicia D., 35 Conn. App. 490 , 646 A.2d 862 , cert. denied, 231 Conn. 931 , 649 A.2d 253 *250 (1994) (termination petition filed after continuous supervision of child over period of five years, Appellate Court construed petition as coterminous); In re Romance M., 30 Conn. App. 839 , 622 A.2d 1047 (1993), appeal dismissed, 229 Conn. 345 , 641 A.2d 378 (1994) (no indication of whether trial court waived one year requirement); In re Wayne A., 25 Conn. App. 536 , 595 A.2d 373 (1991) (coterminous petition alleging consent); In re Emmanuel M., 43 Conn. Sup. 108 , 648 A.2d 904 (1993) (coterminous petition alleging act of omission or commission and that there was no ongoing relationship); In re Raymond W., Superior Court, judicial district of Windham, Juvenile Matters at Willimantic (October 22,1990) (“[o]n September 17,1990, the day of trial, [the department] orally moved to delete the ground of failure to rehabilitate, indicating that it was inapplicable to a coterminous petition and that it had been alleged in error”). In re Ammy F., Superior Court, judicial district of New London, Juvenile Matters at MontviUe (October 6,1994), in facts almost identical to those in this case, the trial court stated: “In the instant case, there has been no neglect adjudication in a prior proceeding. Here, [the department] filed a separate neglect petition and termination petition for Ammy and then requested the court to proceed as on a coterminous petition .... In fact, there has been no neglect adjudication until this court reached that determination earlier in this memorandum of decision.” In footnote 3, the trial court stated that the adjudication of Ammy as neglected on January 14, 1988, could not qualify as the “prior proceeding” and therefore had no bearing on the neglect petition before the court because it had been previously disposed of. Therefore, failure to achieve rehabilitation could not qualify as a ground for termination. Id.

This interpretation is borne out by a recent amendment to General Statutes § 17a-112, No. 96-246, § 18, of the 1996 Public Acts, effective October 1, 1996, which provides that if a parent “of a child, under the age of seven years who is neglected or uncared for, has failed, is unable or is unwilling to achieve such degree of personal rehabilitation” their rights may be terminated. The use of the phrase “is unable or is unwilling to” indicates that the parent will fail in the future, not that the parent has failed based on past actions. “This ground essentially allows the court to apply the existing ground of failure to rehabilitate, in certain circumstances, to parents without affording them any opportunity for rehabilitation.” (Emphasis added.) P. Chill, supra, § 24 (E), p. 155.