Opinion
Nos. M08-CP05-009713-A, M08-CP05-009714-A
September 20, 2007.
MEMORANDUM OF DECISION
These are termination of parental rights ("TPR") cases. The grounds alleged by the commissioner of the department of children and family services ("DCF"), the petitioner herein, in the August 28, 2006, TPR petitions it filed against each respondent parent are
. . . (B) the child (i) has been found by the Superior Court or the Probate Court to be 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 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 . . . [and]
(E) the 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 as would encourage the belief that within a reasonable period of time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child and such parent's parental rights of another child were previously terminated pursuant to a petition filed by the Commissioner of Children and Families. . .
On August 28, 2007, through August 30, 2007, the TPR trial took place. The mother and the father were represented by counsel and they appeared and attended each day of the trial. Dillon M. ("Dillon") and Carly M. ("Carly"), who were ages three and two respectively, were represented by counsel who acted as both their attorney and guardian ad litem.
General Statutes § 46b-129a(2) provides in part: ". . . a child shall be represented by counsel knowledgeable about representing such children who shall be appointed by the court to represent the child and to act as guardian ad litem for the child. . ."
Each such attorney who has been appointed as attorney for a child is to act also as guardian ad litem until ". . . a conflict arises between the child's wishes or position and that which counsel for the child believes is in the best interest of the child. . ." General Statutes § 46b-129a(2); see also In re Christina M., 280 Conn. 474, 491 (2006): ". . . Section 46b-129a authorizes a court initially to appoint an attorney who will serve the dual roles of advocate and guardian ad litem for a child. . ."
JUDICIAL NOTICE
Approximately two months prior to the trial, pursuant to In re Jeisean M., 270 Conn. 382, 402 (2004), DCF moved that this court take judicial notice of the entire court file in this case, and specifically, court orders, court findings and other matters as set forth in such motion. There was no objection to the court taking judicial notice of the following facts:
In In re Jeisean M., supra, 270 Conn. at 402-03, the Supreme Court stated:
"A party requesting the court to take judicial notice of a fact shall give timely notice of the request to all other parties. Before the court determines whether to take the requested judicial notice, any party shall have an opportunity to be heard." Conn. Code Evid. § 2-2. "So long as the parties are offered an opportunity to be heard the court may notice any fact concerning the parties and events of the case that is appropriate for judicial notice." State v. Zayas, 195 Conn. 611, 615, 490 A.2d 68 (1985). Trial courts may take judicial notice of facts contained in the court file; Brockett v. Jensen, 154 Conn. 328, 336, 225 A.2d 190 (1966); and may take notice of court files in other actions between the same parties. Carpenter v. Planning Zoning Commission, 176 Conn. 581, 591, 409 A.2d 1029 (1979).
1. On January 14, 2005, DCF filed ex parte motions for orders of temporary custody ("OTC") of Carly and Dillon, and such motions were supported by an affidavit authored by C______ L_______, a DCF social worker, and by a letter signed by C______ F______ APRN of ___________ Hospital.
2. On January 14, 2005, the court vested temporary custody of Carly and Dillon in DCF. The court found that Carly and Dillon were in immediate physical danger from surroundings, that said children's safety was endangered, and immediate removal from such surroundings was necessary.
3. On January 14, 2005, the court found that reasonable efforts to prevent or eliminate the need for removal of Carly and Dillon from the home were not possible.
4. On January 14, 2005, DCF filed petitions alleging that Carly and Dillon were neglected.
5. Also on January 14, 2005, DCF filed coterminous petitions to terminate the rights of the parents, and a summary of facts authored by DCF social worker C________ L_______.
6. On January 21, 2005, the Court sustained the January 14, 2005, ex parte orders of temporary custody.
7. On February 9, 2005, W____ B, a DCF social worker assigned to the family, submitted a social study concerning the neglect petitions.
8. On February 9, 2005, W_____ B_________ also filed a social study concerning the termination petitions.
9. On February 25, 2005, the court adjudicated Carly and Dillon neglected and committed them to the Commissioner of the Department of Children and Families until further order of the Court.
10. Also on February 25, 2005 the court found that reasonable efforts to prevent or eliminate the need for removal of Carly and Dillon were made by DCF.
11. Because of the adjudications of neglect, on February 25, 2005, the court vacated the orders of temporary custody.
12. Also on February 25, 2005, DCF withdrew its January 14, 2005, petitions for termination of parental rights.
13. On March 3, 2005 DCF filed termination of parental rights petitions regarding Carly and Dillon, a summary of adjudicatory facts, and a social study submitted by DCF social worker W____ B___.
14. On October 13, 2005, the court revoked the commitment to DCF of Carly and Dillon and it returned Carly and Dillon to the care and custody of the mother.
15. Also, on October 13, 2005, the court ordered one year of protective supervision for Carly and Dillon.
16. Further, on October 13, 2005, the court found that DCF made reasonable efforts to achieve the permanency plan.
17. Additionally, on October 13, 2005, the court found that it was not appropriate for DCF to continue to make reasonable efforts to reunify Carly and Dillon with father.
18. Finally, on October 13, 2005, the court approved the permanency plan goal of revocation of commitment and placement of Carly and Dillon with mother.
19. On June 23, 2006, DCF filed ex parte motions for temporary custody of Carly and Dillon.
20. Also, on June 23, 2006, the court found that Carly and Dillon were in immediate physical danger from surroundings, that their safety was endangered and immediate removal from such surroundings was necessary.
21. Thus, on June 23, 2006, the court ordered that DCF take temporary custody of Carly and Dillon.
22. Additionally, on June 23, 2006, the court found that reasonable efforts to prevent or eliminate the need for removal of Carly and Dillon were made by the state.
23. On June 27, 2006, DCF social worker L___ C______ filed an affidavit with the court.
24. On June 30, 2006 the court sustained the June 23, 2007, orders of temporary custody.
25. On August 28, 2006, DCF filed petitions seeking the termination of the rights of the parents of Carly and Dillon ("the current TPR petitions").
26. On January 8, 2007, the court granted the DCF motions to open and modify the prior disposition of protective supervision in this case, and the court found that commitment to DCF was in the best interest of Carly and Dillon. (See exhibit 3, social study, page 3.)
27. On January 14, 2005, January 21, 2005, February 25, 2005, June 30, 2006, January 8, 2007, and May 4, 2007, the court ordered specific steps for one or both parents.
28. There were earlier proceedings concerning an older male half-sibling of Carly and Dillon resulting in a termination of the parental rights of the mother, including the following:
A. a February 28, 1994 OTC after the court found that such half-sibling was in immediate physical danger from surroundings and immediate removal from such surroundings was necessary to ensure his safety;
B. also on February 28, 1994, DCF filed a neglect petition and a summary of facts authored by DCF social worker D______ T_______;
C. on April 14, 1994, the court set forth expectations for the mother's possible reunification with such older half-sibling;
D. on March 30, 1995, the court adjudicated such older half-sibling neglected and uncared for and committed him to the custody of DCF for eighteen (18) months;
E. on September 28, 1995, DCF social worker M______ L_____ file a study for in-court review regarding such older half-sibling;
G. on August 21, 1996 DCF sought an extension of commitment, and filed a summary of facts and a social study, both authored by DCF social worker M______ L_____;
H. on October 7, 1996, DCF filed a petition seeking the termination of the rights of the mother and the father of the older half-sibling, with a summary of facts and social study, both authored by DCF social worker K_______ P___; and
I. on May 5, 1997, the parental rights of the parents to such older half-sibling were terminated.
ADDITIONAL FACTS
The court finds that the following facts have been proved by clear and convincing evidence:
1. The mother's parents ("the maternal grandparents") were divorced when she was approximately eleven years old and the maternal great-grandfather who had assumed a parental role for her died approximately two years later. (Exhibit 1, 2.)
2. The mother finished the eleventh grade and stopped attending school when she became pregnant with the older male half-sibling. Id., 3. The mother later obtained her GED degree. Id.
3. In 2004 the mother reported to a provider that her first use of heroin, cocaine and marijuana was when she was fifteen. Id., 4. In January 2005, she told the same provider that she began using heroin and marijuana at age seventeen, she began using cocaine at age twenty, and her first use of methadone was at age thirty-four. Id. Also in 2005 she told a DCF worker that she began using heroin when she was in her mid-twenties and cocaine when she was in her late twenties. Id. At the time of the trial, the mother was thirty-nine years old. Id., 1.
4. In the months before DCF filed its current petitions to terminate her parental rights, the mother was arrested three times for narcotics-related charges. Id. On August 22, 2006, the date the social study was completed, the mother was incarcerated because she was unable to post bail relating to such charges. Id. As of such time, the mother had a lengthy history of arrests and convictions, and she was a convicted felon. Id.; exhibit 4. The mother also had a history of using alias names. (Exhibit 1, 5.)
5. The father's brother died when he was fifteen and the paternal grandfather died approximately ten years before the current TPR petitions were filed. Id.
6. For approximately fifteen years prior to the filing of such TPR petitions, the father was self-employed as a carpenter. Id.
7. Both the father and the mother stated that they had been together for approximately fifteen years prior to the filing of such TPR petitions. Id.
8. In January 2005, the father reported to a provider that his first use of heroin and marijuana was when he was twenty, and his first use of methadone was in his early twenties. Id., 6. At the time of the trial, the father was thirty-eight years old. Id., 1.
9. During the years 1993-2002, the father had an extensive criminal history. Id., 6. The father is a convicted felon. Id.
10. In January 2004, Dillon was born. Id. Although the mother denied that she used substances, at the time of Dillon's birth, she tested positive for marijuana and methadone. Id. The mother's explanation for the positive marijuana test was that she "must have been in the presence of other drug users and therefore she was exposed to the marijuana smoke." Id., 6-7.
11. From January 2004, through September 2004, the mother cooperated with DCF and her urine test screens were negative. Id., 7.
12. In late December 2004, Carly was born, and she tested positive for cocaine, marijuana and methadone. Id., 1, 7, 8. Because of withdrawal symptoms, Carly was transferred to the neonatal intensive care unit. Id., 8. After Carly's birth, through January 11, 2005, Dillon resided with the father. Id., 7.
13. On January 11, 2005, a hospital nurse, a mandated reporter, reported to DCF that Carly was ready for discharge but ". . . that she was concerned for the child's well being if she were to go home to her mother and father. . ." Id. On January 12, 2005, Carly was placed in a DCF licensed non-relative foster home. Id.
There are several statutory provisions dealing with mandated reporters and their duties, including, inter alia:
(1) General Statutes § 17a-101(b): "The following persons shall be mandated reporters: Any physician or surgeon licensed under the provisions of chapter 370, any resident physician or intern in any hospital in this state, whether or not so licensed, any registered nurse, licensed practical nurse, medical examiner, dentist, dental hygienist, psychologist, coach of intramural or interscholastic athletics, school teacher, school principal, school guidance counselor, school paraprofessional, school coach, social worker, police officer, juvenile or adult probation officer, juvenile or adult parole officer, member of the clergy, pharmacist, physical therapist, optometrist, chiropractor, podiatrist, mental health professional or physician assistant, any person who is a licensed or certified emergency medical services provider, any person who is a licensed or certified alcohol and drug counselor, any person who is a licensed marital and family therapist, any person who is a sexual assault counselor or a battered women's counselor as defined in section 52-146k, any person who is a licensed professional counselor, any person paid to care for a child in any public or private facility, child day care center, group day care home or family day care home licensed by the state, any employee of the Department of Children and Families, any employee of the Department of Public Health who is responsible for the licensing of child day care centers, group day care homes, family day care homes or youth camps, the Child Advocate and any employee of the Office of Child Advocate."
(2) General Statutes § 17a-101a: "Any mandated reporter, as defined in section 17a-101, who in the ordinary course of such person's employment or profession has reasonable cause to suspect or believe that any child under the age of eighteen years (1) has been abused or neglected, as defined in section 46b-120, (2) has had nonaccidental physical injury, or injury which is at variance with the history given of such injury, inflicted upon such child, or (3) is placed at imminent risk of serious harm, shall report or cause a report to be made in accordance with the provisions of sections 17a-101b to 17a-101d, inclusive. . ."
(3) General Statutes § 17a-101b(a): "An oral report shall be made by a mandated reporter as soon as practicable but not later than twelve hours after the mandated reporter has reasonable cause to suspect or believe that a child has been abused or neglected or placed in imminent risk of serious harm, by telephone or in person to the Commissioner of Children and Families or a law enforcement agency. If a law enforcement agency receives an oral report, it shall immediately notify the Commissioner of Children and Families."
14. On January 14, 2005, see pages 2-3, supra, Dillon was placed with the maternal grandfather and his paramour, but approximately one month later they asked that he be removed from them. Id. From February 17, 2005, through February 25, 2005, Dillon was in foster care, and on February 25, 2005, he and Carly were adjudicated neglected. Id. Pursuant to an order of protective supervision Dillon and Carly were reunified with the mother. Id.; see pages 3-4, supra. 15. On August 22, 2005, the mother, Dillon and Carly were discharged from the residential mother-child substance abuse treatment program that DCF had arranged for them, and the family went to reside with the maternal great-grandmother, who at such time was eighty-eight years old, in poor health, and who told the current social worker that she did not want the mother and the children living with her for any significant period of time. Id., 10.
16. DCF referred the mother to aftercare outpatient treatment; continued methadone treatment; group counseling; Narcotics Anonymous meetings; and supportive housing for recovering families. Id.
17. The mother was able to obtain an apartment through a church program, with a monthly rent of two hundred dollars. Id. DCF paid the security deposit and first month's rent for such apartment. Id. The mother received case management services from an employee of the church program. Id.
18. The mother was unable or unwilling to maintain steady employment. Id. The mother "reported that she was overwhelmed by working, and left her job, stating that she would instead work on a day-to-day basis for [a temporary labor firm.]" Id. The mother's DSS cash benefits were discontinued because the mother did not report to DSS money that she received from the father. Id.
19. While her children were in her care, DCF also referred the mother to a parent aide program that the mother, according to the current worker, described as "useless." Id.
20. The mother also qualified for full-time day care for both children that cost the mother fifty-eight dollars a week. Id., 10-11.
21. The mother blamed the father for a lack of support. Id., 11. In May 2006, the mother stated to DCF that the father ". . . was being a `jerk,' that he continued to blame her exclusively for the removal of the children, that he admitted to using drugs at that time but refused to take responsibility for his excessive drinking, that he was upset with [the mother] for moving further away from him as he was unable to see the children as often, and that he paid support to the mother reluctantly while making derogatory comments to her. Dillon was displaying aggressive behaviors in the home at that time as well." (Exhibit 3, social study, 19.)
22. In May 2006, DCF received reports about ". . . lots of `traffic' in and out of [the mother's] apartment at all hours of the day and night." (Exhibit 1, 11.) On or about June 15, 2006, the mother was forced to leave such apartment. (Exhibit 3, social study, 9, 20.)
23. In June 2006, when DCF invoked a ninety-six-hour hold on each of the children, the mother ". . . was actively using substances and was living out of her car with the children. . ." (Exhibit 1, 11.)
24. On June 23, 2006, ". . . due to [the mother's] active substance abuse, physical neglect, and homelessness. . .," DCF filed ex parte motions for temporary custody of Carly and Dillon. Id., 7, 8; see page 4, supra.
25. Prior to August 22, 2006, the date of the social study in support of the TPR petitions, the mother stated to the current worker that the father "was engaging in problematic alcohol use. . ." Id. The father denied that he did so, and stated to the worker that he had only "`a few beers.'" Id.
26. On August 6, 2006, for the third time in six weeks, the mother was arrested for narcotics and drug offenses. Id., 12. She was incarcerated. Id., 11. On August 7, 2006, because of such incarceration, the mother was unable to participate in a previously scheduled administrative case review. (Exhibit 3, social study, page 3.) On August 22, she remained incarcerated because she was unable to post bail of fifty thousand dollars. (Exhibit 1, 12.)
27. At some point between August 6, 2006, and August 22, 2006, the mother "begged" the current worker to refer her to another mother-child substance abuse program, although the mother admitted to such worker that because of her previous failures in multiple treatment programs "no one in their right mind would give [her] another chance. . ." Id.
28. On August 22, 2006, the date of the social study filed in connection with the TPR petitions, the mother was residing in a residential substance abuse facility and was receiving methadone. Id., 9. The father was receiving methadone and attending Narcotics Anonymous meetings. Id. The father had been referred to a counseling center, but he was discharged because of non-attendance. Id. The father had "not participated in the necessary programs to get to Phase II of his methadone program." Id., 12.
29. As of August 22, 2006, the father was transient; he lived in motels and in the homes of his friends. Id., 9.
30. As of August 22, 2006, there were no "identified relatives who [were] able or willing to provide care for these children." Id.
31. As of August 22, 2006, DCF acknowledged that the mother and the father loved their children. Id., 12. However, DCF had determined that the mother had a "high risk of relapse" if she were not in a recovery program and if she were living in the community, and that "both parents' history of substance abuse and criminal behavior place[d] these children at extremely high risk if they were returned to the care of either parent." Id.
Exhibits 6, 7, 8 and 9 set forth in detail the mother's failure or inability to rehabilitate herself between October 20, 2003, and August 28, 2006.
The mother also has a potentially life threatening illness. (Exhibit 6, 12 — Axis II.)
32. On May 5, 1997, approximately nine years prior to August 2006, the mother consented to the termination of her parental rights to the older male half-sibling.
33. After the August 28, 2006, filing of the TPR petitions, DCF continued to provide each of the parents with supervised visitation. (Exhibit 2, 2.) On at least four of the visits, the father "had a red face and bloodshot eyes. . ." Id. During two of the visits, a supervisor "detected an odor of alcohol on [the father's] breath. . ." Id. On other visits, DCF observed that the father was acting inappropriately with respect to the children. Id., 2-3. With respect to the father's care of the children during visits, DCF workers observed numerous safety issues that caused them to intervene for the protection of the children. Id., 3-4. Because of the father's continuing relationship with the mother and statements he made to the children about the mother and all of them living together as a family, DCF was concerned that the father would not be able to protect the children from the mother if they were returned to and reunified with him. Id., 3-4.
34. On September 12, 2006, the mother was released from incarceration to a drug rehabilitation program that did not allow children to be part of the rehabilitation process. (Exhibit 13.)
35. After the August 28, 2006, filing of the TPR petitions, beginning on October 12, 2006, an experienced psychologist (exhibit 12) conducted a court-ordered evaluation of the parents. The psychological evaluation report was admitted as a full exhibit. (Exhibit 13.) The evaluation was ordered by the court to determine each parent's "substance abuse profile and psychological functioning." Id., 2.
36. In such evaluation, the mother admitted or claimed the following to the evaluator:
A. During her life through the trial her father has been an active alcoholic.
B. She was an honors student in school but she misbehaved and got into a lot of trouble. She "cut class" and did not do a lot of the homework, but she always did well on the tests.
C. In 9th grade, she left her home and moved in with her boyfriend at the time. Her mother contacted the school and notified them that the mother was "on her own." The mother's goal at that time was "show everyone that she could [graduate]." However, the mother left school during her junior year. The mother received her GED in 1991 and thereafter received her CNA certification as a LPN in 1997.
D. At approximately eighteen years of age, she became pregnant with her first child. She dated her boyfriend "for a little while longer and then the two of them broke up. . ."
E. She stated that it was "[her boyfriend's] brother's wife who started her on heroin at the age of 14. She reported that this woman stuck a needle in her arm and that was the beginning of her heroin addiction. . ."
F. The mother "admitted using crack cocaine since the age of 15 and marijuana, heroin, and alcohol since the age of 14. Her primary drug of choice was heroin. . ."
G. The mother started methadone treatment at approximately age 27, in the early 1990s. From October 2003 through August 1, 2006, she was involved with the methadone clinic at the H_______ D________ in N__ L_____. On July 1, 2005 through September 2005, [the mother] was at the inpatient facility designed for mothers and children at the N__ L___ C_____ in P____, CT. She lived there with her son Dillon, who was 1 year of age, and her newborn infant, Carly. [The mother] indicated that when Dillon was born, she was smoking marijuana and therefore DCF became involved in her family's case. They allowed her to take him home from the hospital and closed the case 9 months later in September 2004 because she was compliant with their recommendations. [I]n October 2004, she relapsed before she gave birth to Carly. In December 2004, she tested positive for drugs again. When she gave birth to Carly, DCF took Dillon from their home and Carly from the hospital on January 11, 2005, and informed [the mother] that she needed to get into a treatment program. She entered the N__ L___ P_______ on January 19, 2005. Upon her discharge from this program in September 2005, [the mother] regained custody of her two children and moved in with her grandmother until April 2006, when DCF helped her to find an apartment in New London for a minimal rent. Thirty days after her discharge from the N__ L___ program she got a full time job at P_______ which is a factory where she did assembly work. She enrolled her children in day care in W_______. Although it had been stressful at her grandmother's, [the mother] found herself isolated while living in N__ L_____ and further away from any support systems, including [the father]. She therefore had to take care of the children primarily by herself and ended up relapsing in June 2006. . ." Id., 5.
37. Because of the mother's substance abuse history and her history of relapse, the evaluator asked why the mother rather than the father was DCF's focus for custody. The mother believed that it was because parent/child treatment programs were available for mothers but not for fathers. Id., 6.
38. The father denied to the evaluator that he used drugs. Id.
39. The father admitted to the evaluator that he and the mother had been together "on and off for the past 17 years . . . but still feel a commitment toward each other." Id. The father also stated that "he feels a strong connection to [the mother]." Id.
40. The father admitted use of alcohol beginning at age thirteen, marijuana beginning at age fourteen, cocaine and heroin beginning at age sixteen and crack cocaine beginning at age twenty. Id. The father stated that his primary drug of choice had been heroin, and he said that it had caused the most problems in his life. Id. He claimed to the evaluator that in the year prior to the evaluation he drank only one beer. Id., 15. This claim was not credible.
41. The father was last arrested in 2002. After such arrest, the father received inpatient treatment that he viewed as the beginning of his efforts to take control of his life. Id. The father stated that although he had prior experience with methadone, he was "effectively" involved in methadone treatment for the thirty months prior to the meeting with the evaluator. The father stated that he was in "phase 2" of the methadone program, and that he was working toward "phase 3" of such program. He also stated that he attended Narcotics Anonymous meetings once weekly. Id., 7. The father stated that since the birth of Dillon, he had been committed to his sobriety with respect to drugs and that he had maintained such sobriety.
42. The methadone provider tested the father for opiates, cocaine, benzodiazepines, barbiturates and amphetamines, but not for alcohol or marijuana. Id., 9. Prior to October 12, 2006, the father's last positive test for opiates was in January 2004, and the last test that was positive for drugs that were within the testing parameters was in July 2004.
43. Each parent's observed interaction with the children was positive. Id., 8-9. Such evaluator observed that "the children appear to be very comfortable and bonded to [the father] and have little anxiety in his presence. . ." Id., 12.
44. The evaluator expressed the following opinions:
A. "At this time [November 2006] visitation between the children and the parents is appropriate. Currently the children see their mother and father for one hour a week. If [the father] shows a strong plan to procure a safe and stable living environment for his children, then his visitation in this process should be increased to two times a week. If he obtains an apartment and it appears that he may regain custody of the children, it is recommended that he be allowed to take the children on the weekends, to aid in a gradual transition to permanent placement."
B. "[The mother] should be allowed to continue to see her children one time a week. If it appears that [the mother] will indeed be able to regain custody, then her visitation with the children should also increase to two times a week. It is reasonable to assume that she will also have contact with her children and this relationship needs to be fostered during this time period, as long as she remains sober. If [the father] does regain custody of the children and [the mother] is appropriately and effectively going through the [drug rehabilitation] program, then her time can also be increased to three visits a week and perhaps a longer visit on the weekend, as she nears completion of the [drug rehabilitation] Program. However, if she relapses during the time [the father] has the children, he needs to be able to be clear that contact with her is contingent upon her sobriety. This is where the support of an individual as well as a family therapist may be critical. Again, before any custodial arrangements are changed for [the mother], an additional evaluation needs to be conducted."
C. "As indicated at this time [the father] appears to be functioning appropriately in order to regain custody of his children. He is working, he has not used substances for 2 1/2 years, his criminal records has not been active since approximately 2002. If he is able to obtain a safe living environment for them there is no reason that he should not be given the custody of his children, so long as he continues to maintain sobriety and engage in treatment recommendations." (Emphasis supplied.)
D. "In terms of [the mother] it is the opinion of this evaluator that it is still too soon to discuss her ability to engage in long term healthy personal rehabilitation, in order for her to regain custody of her children. However, if [the father] is able to carry forth on his part then it is likely that the children will continue to know their mother regardless of her recovery. Obviously, if she relapses it would be totally inappropriate for her to have custody or responsibility for her children. Nonetheless, if [the father] has legal custody of them, is able to maintain his own sobriety, and not allow her to be a primary caregiver for them unless she is stable, contact with [the mother] is appropriate during the times that she is stable. They are bonded to her and she has demonstrated the ability to exercise good parenting skills when sober." Id., 16.
45. The evaluator made the following recommendations:
A. ". . . that [the father] obtain a safe, stable, residential living situation so that he can create a home for his children. Any financial assistance that could be given in terms procuring a security deposit would be beneficial."
B. "[The father] should become engaged immediately in parenting training, either within a scheduled training workshop or on an individual/family therapy basis, with a trained counselor who specializes in the needs of young children at a time convenient to his work schedule."
C. "[The father] should be engaged in individual therapy focusing on his personality style and stress management skills. If [the methadone facility counselor] is able to provide such treatment, that should occur in regularly scheduled, but no less than twice monthly appointments. If not, then [the father] will need to find another individual therapist who can help him on his defensiveness and reactivity to authority. These characteristics will likely make parenting more challenging for him as the children go through other developmental stages; when issues of independence and autonomy emerge and the importance of parental limits yet insight and patience become paramount."
D. "[The mother] needs to continue to be actively involved in her treatment at the [drug rehabilitation] Program . . . If [the mother] is able to follow through on all of their recommendations and complete their program successfully, then within a period of a year, she too could be reevaluated regarding custody for her children. At this point, it is too soon in her recovery process to be able to recommend that she could regain custody or a primary role within her children's lives."
E. "[The father] will need to continue to be involved in random drug testing through the [methadone facility] and all of his drug screens will need to continue to come back clean."
F. "[The father] will need to continue to be involved in his NA meetings and use that program as a source of support."
G. "If assistance can be given to him in terms of child daycare, this would also be useful to help him manage work and the children's needs."
H. "If [the father] is able to regain custody of his children, monitoring of the drug screens should continue for a minimum of 2 years." Id., 17-18.
46. The evaluator set forth the foregoing opinions and recommendations despite his determination that
A. the mother
(i) had "a long standing impulse control problem";
(ii) needed to behave in "reckless or irresponsible manners";
(iii) had "persistent personality characteristics that are unlikely to change over time";
(iv) would "tend not to seek out psychological treatment on [her] own";
(v) "will have difficulty assuming the responsibility long term for the problems in [her] life and [is] resistant to change ";
(vi) had a history that included relapse, poor judgment, impulsive acting out, and that she performed better in a highly structured environment but she "had difficulty maintaining this improvement when out on her own. . .";
(vii) had personality characteristics that could "have serious consequences for her ability to maintain a functional life style. . ."
(viii) had a "personality style . . . [that] place[d] her and her children at risk for future problems; and
B. the father
(i) in one of the psychological tests claimed to be "unrealistically virtuous," thus showing an "unwillingness or inability on his part to disclose personal information. . ." and weakening the test's validity. Despite that, however, a profile of the father "did emerge which is likely an underestimate of his interpersonal problems. . .";
(ii) was likely to be "somewhat immature, impulsive, and . . . [a] risk taker do[ing] things that others would not approve of, simply for personal enjoyment . . . somewhat rebellious and generally oriented toward thrill seeking and self gratification . . . occasionally show[ing] bad judgment . . . self centered, pleasure oriented, narcissistic, and manipulative . . . intolerant, insensitive, . . . crude or narrow minded . . . Individuals with this profile generally are not self referred for therapy and often tend not to be motivated for change. . .";
(iii) was ". . . vulnerable to impulsive acting out and making bad decisions. . ."; and
(iv) had ". . . irritability and reactance to authority. . ." that he needed to address; and
C. With respect to both parents: "Obviously, there has been a fair amount of time in which the children have not been in their parents' presence due to the substance abuse and treatment episodes. This has certainly impacted the children's ability to form an ongoing, daily routine with their parents. . ." Id., 11-12.
47. In November 2006, after DCF received and reviewed the evaluation report, the current worker referred the father to individual counseling providers. (Exhibit 2, 4.)
48. The father did not immediately act on such referrals. Id. His first appointment with a service provider was on March 7, 2007. Id.
49. In April 2007, the father's therapist observed that the father had arrived at a therapy session "smelling of alcohol." Id.
50. Between March 7, 2007, and May 4, 2007, the father missed three of six scheduled appointments. Id.
51. After such evaluation report, the current worker provided the father with information on housing assistance agencies. Id. In late May 2007, the father obtained housing, and DCF paid the first month's rent. Id.
52. As of August 22, 2007, the father had not provided DCF with proof of his current employment and income, as required by the specific steps, because he "is paid `under the table.'" Id.
53. For a period of time after such evaluation report, the father resisted any evaluation for alcohol use or abuse. Id., 5. On April 16, 2007, the father participated in a substance abuse evaluation. Id. The father claimed that he engaged in "`social drinking' only." Id.
54. After such evaluation, in November 2006, the mother was absent without permission from the residential drug treatment facility she went to by order of the Superior Court for Criminal Matters after she was released from pre-trial incarceration. Id. She was observed and noted to be with the father during her absence from the treatment facility. Id.
55. On February 1, 2007, when the mother was in the residential treatment facility, the mother participated in an administrative case review.
56. On March 12, 2007, the mother was released from the residential drug treatment facility. Id. Unfortunately, within approximately one month after such release, in April 2007, the mother relapsed, was arrested and was incarcerated. Id., 5-6. As of August 22, 2007, the mother was facing criminal charges from an April 24, 2007, arrest, including possession of narcotics and possession of drug paraphernalia. (Exhibit 4, numbered page 1.)
57. On May 10, 2007, the mother was sentenced to one year incarceration, execution of sentence suspended, and one year of conditional discharge on a substituted charge of larceny in the fourth degree. Id.
58. On September 12, 2006, the mother was sentenced to two years incarceration, execution of sentence suspended, and two years of probation for possession of narcotics. Id. Because of the mother's April 24, 2007, arrest (see paragraph 56, supra), the mother was charged with violation of such probation, and such charge was pending on August 21, 2007. Id.
59. As of the trial the mother had returned to and was a patient at the drug rehabilitation facility. (Exhibit 2, 6.)
60. Also in the March 12, 2007, social study, the current DCF worker reported that the father "frequently [got] into power struggles with the children during visits, [did] not appear to have age-appropriate expectations of toddler-age children, and ridicule[d] the children when they bec[a]me frightened about something." (Exhibit 3, 21.) The father "also [brought] inappropriate toys to visits, such as balloons, which present a choking hazard to young children." Id. Beginning in May 2007, the father rented a second floor apartment, and his visits with the children occurred there or at other locations. (Exhibit 11.) The supervised visitation workers' reports set forth both positive parenting at times by the father and several safety issues relating to the children while they were in his care. Id.
61. The supportive housing worker testified that she helped the mother to obtain an apartment where she and the children could reside for up to eighteen months as long as she complied with the rules of the supportive housing group. The mother failed, refused or was unable to comply with such rules. In July 2006, DCF informed her that the mother had been arrested.
62. The supportive housing worker stated that she did not meet the father. He was not one of the persons for whom such supportive housing was provided.
63. A worker from N______ F______ S_______ testified that she supervised separate visits by the mother and the father. Some of the visits were with the mother, her oldest child and the maternal great-grandmother. During those visits such oldest child took on parenting responsibilities for the mother. The worker addressed that issue with the mother, because during those occasions such worker was unable to evaluate the mother's parenting abilities. The issue, however, continued to occur when such oldest child was present.
64. Such visitation worker testified about the safety problems at the apartment the father began to occupy in May 2007. Such safety issues included lack of "child-proofing," including electrical outlets, cleaning supplies, tools and fans that were accessible to the children; issues of parental supervision, including protecting Carly from aggression by Dillon; and issues related to the apartment's second-floor location, including lack of gates for the stairs from the apartment. On "many occasions," the father acknowledged such safety issues to the worker. On other occasions, the father stated to the worker that "nobody's perfect."
65. Such worker stated that there were "positives" in the children's visits with the father, including his social interaction with the children.
66. A DCF worker formerly assigned to the family from January 27, 2005, through December 1, 2005, testified. Such worker stated that in December 2004, the hospital in which Dillon was born made a referral to DCF because of positive drug tests. Services offered, available or provided to the mother and the father by DCF or through its efforts included a residential program for women and children (not available to the father); substance abuse evaluation and treatment; methadone treatment and maintenance; parenting classes; visits; transportation of the mother, the father and the children to visits; family counseling; and couples' counseling.
67. During the time such worker was assigned to the family, the father lived in motels. He did not always inform DCF of his then current address.
68. In June 2005, the mother reported to the worker that the father was involved in a relationship with another woman. The mother told the worker that she felt betrayed by the father. During this period, visits with the children occurred at the mother/child residential treatment facility. Because of the father's behavior, including abuse of alcohol, the mother stated that she could not supervise the father's visits with the children. The mother described the father's alcohol problem as a relapse. She stated that "he always had a problem with drinking." The mother said that the father called her "a snitch." At some time after the father's alcohol relapse, the mother and the father worked to restore their relationship. They decided that they wanted to raise their children together instead of only one of them doing so. (At trial, the mother stated that if the father was reunified with the children, she would not be involved with them. Even assuming that the mother's statement was well-intentioned, currently the mother does not have the strength to act in accordance with such statement, and the father does not have the strength to keep the mother from the children if she is using or abusing drugs.)
69. On August 24, 2005, such worker suspected that the father had alcohol on his breath. She stated that the father was late for some of his visits at the facility. On August 24, 2005, the mother left the residential treatment facility.
70. The worker thought the father had relapsed and sent the father a letter containing the names and contact information of alcohol abuse service providers. The father was not receptive to evaluation and treatment services related to alcohol abuse. The father did not attend three scheduled intake and test dates. In September 2005, he finally attended a scheduled evaluation. His attorney stated that there was no need to refer him for alcohol services.
71. The mother reported that her oldest child did not graduate from high school because he drove the father to the methadone clinic each morning and he thus was not able to attend school. The mother also reported that the father was drunk each night and that he yelled at the oldest child. The mother reported that the father was not taking seriously his alcohol issues. The mother also stated that the father was not doing emotionally or financially what he needed to do to parent the children.
72. The worker testified that on October 13, 2005, the court revoked the commitment of the children to DCF. The mother and the children moved to the home of the maternal great-grandmother. The father was able to visit with the children.
73. When the worker's involvement with the family ended in December 2005, she had made referrals for supportive housing and a parent aide to assist the mother; the mother on her own also was seeking an apartment; Dillon was in a daycare program; during each day the oldest child was caring for Carly and the mother and the father were working on their issues and again trying to reconcile.
74. The worker testified that both the mother and the father acted appropriately with the children.
75. In his testimony, the psychological evaluator, who was qualified as an expert in clinical assessments and clinical evaluations, stated that as of August 2006:
A. the mother had a history of substance abuse disorder, and that she had characterological issues of impulsive behavior, poor judgment and making "bad choices";
B. the father had a history of substance abuse disorder and that he had characterological issues of hostility to authority, impulsive behavior and poor judgment; and
C. the mother had difficulty taking care of the children in an adequate way.
76. Such evaluator also testified that at the time of the October 2006, evaluation, the mother was not ready to assume responsibility for the children. Given the mother's subsequent history of relapse and arrest, and given the ages and needs of the children, the evaluator opined that at the time of the trial the mother had not rehabilitated sufficiently to be an adequate parent of the children. The evaluator opined that the mother should not have unsupervised contact with the children. The evaluator further opined that in October 2006, or November 2006, it was "way too early" to consider the mother as being able to regain custody. The mother needed a year of compliance with the various substance abuse treatment and mental health requirements before she should be reevaluated. The mother "had a long road ahead of her." The evaluator explained it by stating: "If you're at the bottom, you can't go much lower."
77. With respect to the father, the evaluator testified that for the father to be considered as the custodial parent, the father would have to engage in therapy, attend parenting classes and training, and remain free of substances. Such father would also have to obtain an apartment that was safe for the children within two or three months of November 16, 2006, the date of the evaluation report. If the father were compliant with such recommendations for six to nine months, his visitation with the children should have increased, and then his commitment to parenting the children could be assessed. The evaluator testified that as of August 2006, and November 2006, the father was not ready to parent the children. The father did not have an apartment, and he had personality issues to be addressed in therapy. The evaluator stated that there was no recommendation to give the father "full-time custody at the beginning."
78. At trial the evaluator was concerned by the reports of the father's use of alcohol during the period after the evaluation. Such report undercut the weight of the father's statement to the evaluator that he had drunk only one beer in the year before the evaluation. The evaluator was also unaware of the mother's 2005 statements that the father had been drinking heavily each evening and that the father "always had a drinking problem."
79. The current worker testified that she was assigned to the family on July 17, 2006. She is the author of exhibits 1-3, and 14-16.
80. She read the evaluator's recommendations concerning the father and attempted to implement them. On November 22, 2006, she contacted agencies that could provide individual therapy for the father. She looked for agencies with immediate openings, evening hours and a sliding fee scale. The father told her he wanted to schedule his own appointments. In January 2007, the father telephoned the current worker because he had lost the individual therapist referral list and needed to have the information provided to him again.
81. Such current worker attempted to verify the father's employment. Although the father provided some December 2006, pay stubs, he told her that he usually "works under the table for someone else."
82. In January 2005, the father did not comply with a service agreement he entered into with DCF. He allowed the mother to have contact with Dillon although she was then actively abusing substances.
83. The current worker testified that DCF advanced the first month's rent of $350 for the apartment the father obtained in late May 2007.
84. From April 2006, through May 2007, the father had a residence that DCF deemed to be unsuitable for the children. Prior to that period, the father resided in several different motels, none of which were appropriate permanent living arrangements for the children. During that prior period, the father was transient.
85. Pursuant to the evaluator's recommendations, DCF's goals for the father were that the father be alcohol and substance free; have safe housing; apply appropriate parenting techniques and protect the children from the mother if she were abusing alcohol or substances.
86. Also pursuant to the evaluator's recommendations, DCF increased the father's visitation with the children to three hours on each weekend, when he was not working.
87. As of August 28, 2006, DCF had determined that neither parent was able to assume the responsibility of being a full-time parent. The mother had been arrested in June, July and August 2006. She frequently had been incarcerated on narcotics-related charges. She had spent extensive time in rehabilitation facilities without success. The father had not complied with service referrals. He did not have stable housing appropriate for him and the children. He had allowed the mother access to the children when she was actively abusing substances.
88. The worker testified that in March 2007, the mother was released from the residential treatment facility she had entered in September 2006. In April 2007, the mother was arrested for narcotics-related offenses. She did not inform DCF of her arrest. From April 2007, through July 2007, the mother was incarcerated. In July 2007, she was released from incarceration to the residential treatment facility.
89. As of the trial DCF had concerns about the father, including the safety issues in and relating to his current apartment; his continuing alcohol consumption that had been observed by several persons including his therapist during two sessions (see paragraph 94 below); his continuing relationship with the mother; and his inability or unwillingness to protect the children from the mother when she was actively using substances.
In In re Alejandro L., 91 Conn.App. 248, 256 (2005), the trial court and others had warned a mother that continuing a relationship with a person that was unsuitable from the children's perspective "would severely jeopardize her ability to achieve sobriety and to attain a relationship with her children. . ."; "In the spring of 2003, shortly before trial, the respondent chose to cohabit again with L. She made the decision to reside with L despite repeated urgings by the department, the court and various treatment providers encouraging her to sever her relationship with L. She was aware that residing with L would severely jeopardize her ability to achieve sobriety and to attain a relationship with her children." See also In re Vincent D., 65 Conn.App. 658, 671 (2001). ". . . With respect to the mother's housing arrangements, the court criticized her recurrent failure to separate from the father, which continued until one month before the termination hearing. . ." These cases illustrate a parent's dilemma of choice between relationships, and the need to choose and commit solely to children when required for their safety and well being.
90. As of the filing of the termination of parental rights petition and as of the trial DCF concluded that each of the parents had failed to rehabilitate and were not likely to do so in a reasonable time.
91. A DCF social worker involved in transportation for the father's visitation testified that she smelled alcohol on the father's breath several times while securing the children in their car seats after visitation. On occasion, she observed that his eyes and face were red. She also noticed some safety issues when the father was parenting the children, including his failure to keep them within eyesight, thus enabling one or both of them to wander away from him.
92. A DCF social worker testified concerning the issues that caused the mother to lose her subsidized housing unit, including non-payment of rent; loud noise in the apartment; non-maintenance of the apartment; and drug use on such premises.
93. Such worker testified that on June 14, 2006, the mother agreed to vacate the apartment by the next day, and she did so. The mother told the worker that she was going to live with the maternal great-grandmother and her oldest child. Prior to June 22, 2006, the worker located her at the maternal great-grandmother's home. On June 22, 2006, the date of his next visit to the mother, the worker was told that the mother and the children were no longer living there. The worker testified that they were missing for a period of seven to ten days. The worker eventually found the mother at the methadone clinic. The worker concluded that the mother and the children had been living in the mother's vehicle, and he invoked a ninety-six-hour hold. The worker determined that the father was employed part-time, lived in a small apartment, and that he was not in a position to care for the children.
94. The father called his current therapist as a witness. Such therapist testified that on March 21, 2007, she noticed an odor of alcohol on the father's breath. The father told her that he believed that DCF was asking too much of him. He missed his March 28, 2007, and April 11, 2007, appointments. On April 24, 2007, the father stated that he did not have any issues to work on during that session. On May 9, 2007, such therapist noticed a faint odor of alcohol on the father's breath. On May 17, 2007, the father expressed his resentment about DCF and others telling him what to do, and he stated that he could drink a few beers if he wanted to. Thereafter, the father stated that he would stop drinking.
95. See also the factual findings set forth in pages 58-62, infra.
APPLICABLE LAW
General Statutes § 17a-93 provides: "As used in sections 17a-90 to 17a-124, inclusive, and 17a-152: . . . (e) `Termination of parental rights' means the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his parent or parents so that the child is free for adoption except it shall not affect the right of inheritance of such child or the religious affiliation of such child. . ."
General Statutes § 45a-707(8) also defines the termination of parental rights as above:
"`Termination of parental rights' means the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and the child's parent or parents so that the child is free for adoption except it shall not affect the right of inheritance of the child or the religious affiliation of the child. . ."
1. Prerequisite to any TPR determination, and the statutory grounds alleged by the petitioner DCF:
General Statutes § 17a-112(j)(3) provides that the prerequisite to a determination that any TPR petition should be granted is that the court must find by clear and convincing evidence that:
(1) DCF "has made reasonable efforts to locate the parent and to reunify the child with the parent, unless the court finds in this proceeding that the parent is unwilling or unable to benefit from reunification efforts provided such finding is not required if the court has determined at a hearing pursuant to subsection (b) of section 17a-110 or section 17a-111b that such efforts are not appropriate, [and]
(2) that termination is in the best interest of the child. . ."
The third requirement is that the court find, by clear and convincing evidence, that DCF has proved at least one of seven statutory grounds for termination. The grounds that are alleged in this case are:
In In re Shaun B., 97 Conn.App. 203, 214, 903 A.2d 246 (2006), the Appellate Court held that a "court need find only one ground to grant [a TPR] petition:
The respondent also claims that the court improperly found that there was no ongoing parent-child relationship between the respondent and the child pursuant to § 17a-112(j)(3)(D). We decline to review that claim. `Because the statutory grounds necessary to grant a petition for termination of parental rights are expressed in the disjunctive, the court need find only one ground to grant the petition. Thus, we may affirm the court's decision if we find that it properly concluded that any one of the statutory circumstances existed.' In re Brea B., 75 Conn.App. 466, 473, 816 A.2d 707 (2003) [cont.]
Having concluded that the court properly found that there was clear and convincing evidence that the respondent failed to rehabilitate herself pursuant § 17a-112(j)(3)(B)(ii), we need not address the respondent's remaining claim.
The same requirement of one statutory adjudicative ground being proved was reiterated in In re Davonta V., 98 Conn.App. 42, 43 (2006), cert. granted, 280 Conn. 947 (2006):
After determining whether one of the statutory grounds for termination of parental rights under General Statutes § 17a-112(j) exists by clear and convincing evidence, a judge is required to evaluate whether severing the legal tie between parent and child is in the child's best interest.
. . . (B) the child (i) has been found by the Superior Court or the Probate Court to be 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 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 . . . [and]
(E) the 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 as would encourage the belief that within a reasonable period of time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child and such parent's parental rights of another child were previously terminated pursuant to a petition filed by the Commissioner of Children and Families. . .
Despite the order in General Statutes § 17a-112(j) in which the statutory prerequisites to be proved are set forth, prior to any termination of parental rights, "[i]f 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." In re Eden F., 250 Conn. 674, 689, 741 A.2d 873 (1999).
2. Explanation of Ground B, failure to rehabilitate A. General standards
In In re Halle I., 96 Conn.App. 815, 835, 902 A.2d 670 (2006), the Appellate Court has explained the failure to rehabilitate requirements as follows:
Failure to achieve a sufficient degree of personal rehabilitation is one of the seven statutory grounds on which parental rights may be terminated under § 17a-112(j)(3). We have stated that [p]ersonal rehabilitation as used in the statute 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. . ." (Emphasis in original.)
The Appellate Court also explained the foregoing finding requirement as follows:
CT Page 19121
"[T]he adjudicatory determination to be made by the trial court is whether the parent of a child who has been found by the [S]uperior [C]ourt to have been neglected [or] uncared for in a prior proceeding 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 conducting this inquiry, the trial court must analyze the respondent's rehabilitative status as it relates to the needs of the particular child . . . "Although the standard is not full rehabilitation, the parent must show more than any rehabilitation . . . Successful completion of the petitioner's expressly articulated 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 child 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." (Citations omitted; emphasis added; internal quotation marks omitted.) In re Alejandro L., 91 Conn.App. 248, 259-60, 881 A.2d 450 (2005); see also In re Amneris P., 66 Conn.App. 377, 383-84, 784 A.2d 457 (2001); In re John G., 56 Conn.App. 12, 17-18, 740 A.2d 496 (1999).
In re Halle T., supra, 96 Conn.App. at 835-36.
The same point is also set forth in In re Shyliesh H., 56 Conn.App. 167, 179-80, 743 A.2d 165 (1999). After noting the requirement of General Statutes § 17a-112(c)(3)(B) that a parent's rehabilitation must be determined with reference to "the age and needs of the child. . .," and further, that "such rehabilitation must be foreseeable within a reasonable time, the Appellate Court explained that" "in 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 child at issue." In re Danuael D., 51 Conn.App. 829, 840, 724 A.2d 546 (1999).
The Appellate Court also referred to Supreme Court statements of the applicable standards:
CT Page 19122
Our Supreme Court has instructed that the applicable standard in these types of cases "requires the court to find, by clear and convincing evidence, that the level of rehabilitation [a parent] 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 Eden F., 250 Conn. 674, 706, 741 A.2d 873 (1999); see also In re Jeisean M., 270 Conn. 382, 399, 852 A.2d 643 (2004); In re John G., supra, 56 Conn.App. 17; In re Juvenile Appeal (84-3), 1 Conn.App. 463, 477, 473 A.2d 795, cert. denied, 193 Conn. 802, 474 A.2d 1259 (1984). A finding of when the respondent would be able to resume caring for the child was required neither by statute nor by case law. Instead, the court properly examined whether, "within a reasonable time, considering the age and needs of the child, [the] parent could assume a responsible position in the life of the child. . ." (Internal quotation marks omitted.) In re John G., supra, 17.
In re Halle T., supra, 96 Conn.App. at 837.
The Appellate Court then focused on the importance of the factual context of the child's circumstances in each case:
We recently emphasized the importance of conducting this inquiry by considering the factual context of the particular child's situation. "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 . . . What constitutes a reasonable time is a factual determination that must be made on a case-by-case basis." (Citation omitted; emphasis added; internal quotation marks omitted.) In re Alejandro L., supra, 91 Conn.App. 260; see also In re Eden F., supra, 250 Conn. 706; In re Christina V., 38 Conn.App. 214, 220-21, 660 A.2d 863 (1995); see also In re Shyliesh H., 56 Conn.App. 167, 173-74, 743 A.2d 165 (1999) (respondent's failure to achieve rehabilitation illustrated by lack of understanding of child's medical, psychiatric condition).
In re Halle T., supra, 96 Conn.App. at 837-38.
Finally, the Appellate Court noted that in a number of cases the parent was unable to meet the standard of rehabilitation sufficiently to have the child returned and to avoid a termination of parental rights:
The court acknowledged the evidence that the respondent had made some progress in personal rehabilitation. Nevertheless, when viewed in the light of the child's significant needs, such progress, made over approximately two years, was insufficient when considered in relation to the child's special needs and her need for permanency. Our case law contains numerous examples of a parent, who, despite an admirable attempt, was unable to achieve rehabilitation sufficiently and, as a result, lost his or her parental rights. See, e.g., In re Vanna A., supra, 83 Conn.App. 22-25; In re Sheila J., supra, 62 Conn.App. 479-82 (respondent's efforts at rehabilitation too little, too late and court's finding that she failed to achieve sufficient rehabilitation despite some level of stability not clearly erroneous); In re Shyliesh H., supra, 56 Conn.App. 172-75 (although respondent testified that he loved child, trial court's finding that he lacked insight, responsibility to cope with her significant psychiatric disorder supported determination of failure to achieve rehabilitation).
In re Halle T., supra, 96 Conn.App. at 838-39 (footnote omitted).
In addition to Sheila J., 62 Conn.App. 470, 481, 771 A.2d 244 (2001) (". . . In effect, however, the court determined that although the respondent demonstrated some efforts and had taken some steps toward rehabilitation, those efforts were too little and too late. . ."), the Appellate Court has upheld other trial court findings of rehabilitation efforts being "too little, too late. . .": see In re Brittany J., 100 Conn.App. 329, 335, 917 A.2d 1024 (2007) (". . . The court also found the testimony of James Connolly, a court-appointed psychologist, to be more credible on this issue and noted that the respondent's `recent cooperation with her psychotropic medication regimen on the eve of trial is "too little, too late". . .'") and In re Dorrell R., 64 Conn.App. 455, 780 A.2d 944 (2001).
In In re Kasheema L., 56 Conn.App. 484, 489, 744 A.2d 441 (2000), cert. denied, 252 Conn. 945, 747 A.2d 522 (2000) the Appellate Court affirmed a trial court's decision that a person's fragile sobriety can be an impediment to a finding of rehabilitation:
. . . The court found by clear and convincing evidence that the respondent failed to achieve a sufficient degree of personal rehabilitation as required by the statute. After hearing testimony from the respondent's own psychologist, a court-appointed psychiatrist and the children's therapists, the court found that even with all the progress the respondent had made since the petition for termination was filed, the respondent is still not presently able to care for her children. Namely, the respondent's sobriety is too fragile and the risk of relapse is too great. Her whole support system would be enormously taxed if the children were returned to her, thereby adding to the risk of reunification. . .
The Appellate Court noted that evaluating whether there has been sufficient rehabilitation the trial court must consider the complete history of the respondent's parenting abilities:
. . . The court, however, makes an inquiry into the full history of the respondent's parenting abilities. In re Galen F., 54 Conn.App. 590, 594, 737 A.2d 499 (1999).
In re Jennifer W., 75 Conn.App. 485, 499, 816 A.2d 697 (2003), cert. den. 263 Conn. 917, 821 A.2d 770 (2003); see also In re Victoria B., 79 Conn.App. 245, 254, 829 A.2d 855 (2003). In an earlier decision, In re Tabitha P., 39 Conn.App. 353, 361, 664 A.2d 1168 (1995) the Court expressed this requirement as follows:
. . . Thus, the trial court's inquiry requires the determination of both the present and past status of the child, and obtaining a historical perspective of the respondent's child caring and parenting abilities. . .
In a dissolution of marriage context the requirement of an inquiry into the full history of the parents' parenting abilities has been expressed as follows:
Nevertheless, our Supreme Court has also held that the court must . . . take account of the parents' past behavior, since it must evaluate their present and future parenting ability and the consistency of their parenting for the purpose of determining which parent will better foster the [child's] growth, development and well-being. Yontef v. Yontef, 185 Conn. 275, 283, 440 A.2d 899 (1981).
Gil v. Gil, 94 Conn.App. 306, 322, 892 A.2d 318 (2006) (internal quotations omitted).
B. Ground B exception to the usual rule that in the adjudicatory phase, the judicial authority is limited to evidence of events occurring prior to the filing of the TPR petition, as amended:Connecticut Practice Book § 35a-7 provides that
(a) in the adjudicatory phase, the judicial authority is limited to evidence of events preceding the filing of the petition or the latest amendment, except where the judicial authority must consider subsequent events as part of its determination as to the existence of a ground for termination of parental rights.
(b) In the discretion of the judicial authority, evidence on adjudication and disposition may be heard in a non-bifurcated hearing, provided disposition may not be considered until the adjudicatory phase has concluded.
In In re Latifa K., 67 Conn.App. 742, 748-49, 789 A.2d 1024 (2002), the Appellate Court explained the language of Conn. Practice Book § 33-3(a), the predecessor of § 35a-7, as follows:
". . . A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition." (Internal quotation marks omitted.) In re Roshawn R., 51 Conn.App. 44, 52, 720 A.2d 1112 (1998). "In the adjudicatory phase of termination proceedings, the court determines the validity of the grounds alleged in the petition, and therefore is limited to events preceding the filing date of the petition. In the disposition phase, the court is concerned with what action should be taken in the best interests of the child, and in that phase the court is entitled to consider facts occurring until the end of the trial." In re Romance M., 30 Conn.App. 839, 859, 622 A.2d 1047 (1993), appeal dismissed, 229 Conn. 345, 641 A.2d 378 (1994).
Despite Practice Book § 33-3(a) and case law regarding termination proceedings generally, we have determined that with regard to termination petitions brought under § 17a-112(c)(3)(B), the trial court may, in the adjudicatory phase, properly consider facts and events that occur after the filing date of the petition in determining whether a respondent has achieved a sufficient degree of personal rehabilitation within the meaning of that statute. See In re Stanley D., 61 Conn.App. 224, 230, 763 A.2d 83 (2000). In In re Stanley D., we addressed a claim that the trial court improperly found that the respondent had not achieved sufficient personal rehabilitation within the meaning of § 17a-112(c)(3)(B). Id., 225, 763 A.2d 83. In our explanation of the requirements of § 17a-112(c)(3)(B) and the hearing process for petitions to terminate parental rights based on that section, we stated that "`[p]ersonal 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 the adjudicatory phase, 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." (Citation omitted; emphasis in original.) Id., 230. The respondent, therefore, cannot prevail on his claim that the court could not consider whether he had achieved personal rehabilitation during the eighteen months subsequent to the filing of the petitions.
In Ground (B)(i) (and Ground (E)) cases, a court may consider events subsequent to the filing date of the petitions, but it does not have to do so:
. . . This court has expanded that rule [set forth in § 35a-7(a)] to allow courts to consider events subsequent to the filing date of the petitions in the adjudicatory phase of termination proceedings. "Practice Book § 33-3(a) [now § 35a-7] limits the time period reviewable by the court in the adjudicatory phase to the events preceding the filing of the petition or the latest amendment . . . In the adjudicatory phase, 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." (Citations omitted; emphasis added; internal quotation marks omitted.) In re Stanley D., supra, 61 Conn.App. at 230; see In re Amber B., 56 Conn.App. At 776, 785, 746 A.2d 222 (2000).
The respondent's appeal challenges the evidence that a court must consider during the adjudicatory phase of the proceedings. The respondent argues that because this court has stated that trial courts may, in their discretion, consider such evidence, fundamental fairness requires the trial court to consider those events that take place up until the hearing. We do not agree with the respondent.
In re Jennifer W., supra, 75 Conn.App. at 494-95.
C. The relationship between a respondent's compliance with the "specific steps" and whether there is "sufficient rehabilitation":
Pursuant to General Statutes § 46b-129(d)(6):
. . . The court, after a hearing pursuant to this subsection [relating to the preliminary hearing on the order of temporary custody or order to appear or the first hearing on a petition filed pursuant to § 46b-129(a) pertaining to neglect, uncared-for or dependency petitions] shall order specific steps the commissioner and the parent or guardian shall take for the parent or guardian to regain or to retain custody of the child or youth. . ."
General Statutes § 17a-112(j)(3)(B) provides in part:
The Superior Court, upon notice and hearing as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that . . . (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, 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 . . . (Emphasis supplied.)
Although because of the presence of a comma after "proceeding" and the absence of a comma after "fifteen months" such subsection can be read so that the specific steps requirement applies only in Ground B(ii) cases (and not in the much more common Ground B(i) cases), the usual practice in this court accepted by DCF and all other parties is to apply the specific steps requirement to such Ground B(i) cases. The Supreme Court has emphasized the importance of compliance by each respondent with the specific steps:
The official form petition for termination of parental rights utilized by DCF (JD-JM-40 Rev. 9-2000) separately sets forth Ground B(i) and Ground (B)(ii) bases for termination, so that DCF can select one, the other or both as a basis for termination.
The specific steps that a respondent and DCF must follow in order to provide an opportunity for reunification. Although the present appeal does not concern a termination proceeding, we note that specific steps are considered to be "fair warning" to a parent of the potential termination of parental rights in subsequent proceedings. In re Jeffrey C., 64 Conn.App. 55, 62, 779 A.2d 765 (2001), rev'd on other grounds, 261 Conn. 189, 802 A.2d 772 (2002).
Indeed, the failure to comply with specific steps ordered by the court typically weighs heavily in a termination proceeding. . .
In re Devon B., 264 Conn. 572, 584 (2003).
The Appellate Court has explained that successful completion of the specific steps, e.g., "petitioner's expressly articulated expectations," is, by itself, "not sufficient to defeat the petitioner's claim that the parent has not achieved sufficient rehabilitation. In re Vincent D., supra, 65 Conn.App. at 670, 783 A.2d 534." In re Jennifer W., supra, 75 Conn.App. at 500. In Vincent D., the Appellate Court explained:
In determining whether a parent has achieved sufficient personal rehabilitation, a court may consider whether the parent has corrected the factors that led to the initial commitment, regardless of whether those factors were included in specific expectations ordered by the court or imposed by the department . . . Accordingly, successful completion of expressly articulated expectations is not sufficient to defeat a department claim that the parent has not achieved sufficient rehabilitation. . .
In re Vincent D., 65 Conn.App. 658, 670, 783 A.2d 534 (2001) (citations omitted).
With appropriate notice, the court may order specific compliance with the specific steps, and the court may enforce its order with its contempt power. In re Jeffrey C., 261 Conn. 189, 802 A.2d 772 (2002). For an explanation and application of DCF's obligations pursuant to the specific steps, see In re Leah S., 96 Conn.App. 1 (2006), cert. granted, 280 Conn. 911 (2006).
Ground B(i) contains a reference to specific steps; Ground E does not. See pages 33-34, supra.
3. The best interest of the child requirements:
As set forth above, the court first determines whether DCF has proved, by clear and convincing evidence, as to each child, one of the grounds alleged in its TPR petitions. In this case, the two grounds alleged in each petition are based on failure to rehabilitate. As set forth below, this court finds that DCF has proved each of such grounds alleged in each such petition with respect to the mother, and Ground (B)(i) with respect to the father.
After making such adjudicatory determinations, before the court can terminate parental rights, it must find, by clear and convincing evidence, that to do so is in the best interest of each of the children:
After determining whether one of the statutory grounds for termination of parental rights under General Statutes § 17a-112(j) exists by clear and convincing evidence, a judge is required to evaluate whether severing the legal tie between parent and child is in the child's best interest. That task is among the most sensitive and difficult with which a judge is charged. Although a judge is guided by legal principles, the ultimate decision to terminate parental rights is intensely human. It is the judge in the courtroom who looks the witnesses in the eye, interprets their body language, listens to the inflections in their voices and otherwise assesses the subtleties that are not conveyed in the cold transcript.
In re Davonta V., supra, 98 Conn.App. at 42, 43.
As has been set forth above:
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. In the dispositional phase, the trial court determines whether termination is in the best interests of the child.
In re Brea B., 75 Conn.App. 466, 469-70, 816 A.2d 707 (2003) (internal quotation marks omitted).
The difference in focus between adjudication and disposition has been explained as follows:
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." In re Romance M., 229 Conn. 345, 356-57, 641 A.2d 378 (1994). During this 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]." In re Tabitha P., 39 Conn.App. 353, 361-62, 664 A.2d 1168 (1995). We note that those "seven factors serve simply as guidelines for the court and are not statutory prerequisites that need to be proven before termination can be ordered . . . There is no requirement that each factor be proven by clear and convincing evidence." (Citation omitted.) In re Victoria B., 79 Conn.App. 245, 261, 829 A.2d 855 (2003).
In re Davonta V., supra, 98 Conn.App. at 46-47 (footnote omitted).
The seven required statutory findings are not specifically delineated in General Statutes § 17a-112(k) as the only parameters for determining the best interest of the child in a TPR context. The focus of many of the required statutory findings is to insure that the parents' rights and interests appropriately and properly have been considered.
The seven required findings set forth in General Statutes § 17a-112(k) are as follows:
Except in the case where termination is based on consent, in 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, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended; (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, 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, any guardian of such child's person 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, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions, and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; 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 the unreasonable act of any other person or by the economic circumstances of the parent.
The Appellate Court very recently has set forth the best interest standards of the child in a TPR context as including ". . . the child's interests in sustained growth, development, well-being, and continuity and stability of its environment. . ." In re Ryan R., 102 Conn.App. 608, 625-26, 926 A.2d 690 (2007). The Appellate Court stated that in making such best interests determination, the trial court should "consider and make" the required General Statutes § 17a-112(k) findings:
The respondent and R both claim that the court improperly concluded, in the dispositional phase of the hearing, that it was in the child's best interest to terminate the parental rights of the respondent with respect to R. We disagree.
"The best interests of the child include the child's interests in sustained growth, development, well-being, and continuity and stability of its environment." (Internal quotation marks omitted.) In re Shyina B., 58 Conn.App. 159, 167, 752 A.2d 1139 (2000). "In the dispositional phase of a termination of parental rights hearing, 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 Jermaine S., supra, 86 Conn.App. 835. The court thoroughly considered each of the seven criteria before finding that the respondent's failure to address her long-term history of substance abuse and domestic violence issues dictated that it would be in R's best interest to terminate her parental rights.
In re Ryan R., supra, 102 Conn.App. at 625-27.
The ". . . child's interests in sustained growth, development, well-being, and continuity and stability of its environment. . ." also are applied in connection with neglect dispositions:
In determining the disposition portion of the neglect proceeding, the court must decide which of the various custody alternatives are in the best interest of the child. "To determine whether a custodial placement is in the best interest of the child, the court uses its broad discretion to choose a place that will foster the child's interest in sustained growth, development, well-being, and in the continuity and stability of [the child's] environment." (Internal quotation marks omitted.) In re Haley B., 81 Conn.App. 62, 67, 838 A.2d 1006 (2004).
Although the focus in the dispositional phase "appropriately shifts from the conduct of the parent to the best interest of the child. . ." In re Romance M., supra, the sixth required finding in § 17a-112(k) is to consider
. . . 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, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions, and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child. . .
As set forth above, the focus of many of the other required § 17a-112(k) findings also is to insure that the parents' rights and interests appropriately and properly have been considered.
Additionally, although "the best interest of the child" is referred to as a dispositional focus, the concept also appears in one of the adjudicatory grounds, Ground D, General Statutes § 17a-112(j)(3)(D), no parent-child relationship:
there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day-to-day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child. . .
Also, General Statutes § 17a-112(q) provides that the "provisions of this section shall be liberally construed in the best interest of any child for whom a petition under this section has been filed." The seven adjudicatory grounds are part of "the provisions of this section," e.g., § 17a-112.
Effective October 1, 2005, in General Statutes § 46b-56, the General Assembly established a set of factors that the court may consider in determining the best interest of a child when entering a custody order, some but generally not all of which factors may on occasion be useful for consideration in the context of a TPR case, in addition to or as an aid to determining a child's interests in sustained growth, development, well-being, and continuity and stability of its environment. General Statutes § 46b-56(c) is as follows:
This TPR case is not within the provisions of Chapter 815j of the General Statutes. In determining whether parental rights should or should not be terminated, the court does not enter a "custody order," and so General Statutes § 46b-56 and § 46b-56b are not directly applicable to such determination. See In re Cameron C., Conn.App. (September 18, 2007).
In making or modifying any order as provided in subsections (a) and (b) of this section, the court shall consider the best interests of the child, and in doing so may consider, but shall not be limited to, one or more of the following factors:
(1) The temperament and developmental needs of the child
(2) the capacity and the disposition of the parents to understand and meet the needs of the child;
(3) any relevant and material information obtained from the child, including the informed preferences of the child;
(4) the wishes of the child's parents as to custody;
(5) the past and current interaction and relationship of the child with each parent, the child's siblings and any other person who may significantly affect the best interests of the child;
(6) the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate, including compliance with any court orders;
(7) any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents' dispute;
(8) the ability of each parent to be actively involved in the life of the child;
(9) the child's adjustment to his or her home, school and community environments;
(10) the length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment. . .
(11) the stability of the child's existing or proposed residences, or both;
(12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, shall not be determinative of custody unless the proposed custodial arrangement is not in the best interests of the child;
(13) the child's cultural background;
(14) the effect on the child of the actions of an abuser, if any domestic violence has occurred between the parents or between a parent and another individual or the child;
(15) whether the child or a sibling of the child has been abused or neglected, as defined respectively in section 46b-120; and
(16) whether the party satisfactorily completed participation in a parenting education program established pursuant to section 46b-69b.
The court is not required to assign any weight to any of the factors that it considers.
In performing its duties with respect to a TPR trial, this court's responsibility does not include where or with whom a child should live after a termination of parental rights, and thus this court should not enter orders concerning such matters as part of any TPR case disposition:
In the dispositional phase of a termination proceeding, the court properly considers only whether the parent's parental rights should be terminated, not where or with whom a child should reside following termination.
In re Sheena I., 63 Conn.App. 713, 726, 778 A.2d 997 (2001). However, after termination of parental rights the court generally appoints DCF as each child's statutory parent, see General Statutes § 17a-146:
. . . the Commissioner of Children and Families shall exercise and have all authority, rights, duties and functions granted to or imposed upon the Commissioner of Social Services in the general statutes in the area of adoption of children, including, but not limited to, authority . . . to act as a statutory parent, as defined in section 45a-707.
General Statutes § 17a-93 provides:
As used in sections 17a-90 to 17a-124, inclusive, and 17a-152: . . . (f) `Statutory parent' means the Commissioner of Children and Families or that child-placing agency appointed by the court for the purpose of giving a minor child or minor children in adoption. . .
See also General Statutes § 45a-707(7).
General Statutes § 17a-112(m) provides:
. . . The Superior Court may appoint a statutory parent at any time after it has terminated parental rights if the petitioner so requests.
In its petitions, DCF has requested that it be appointed as statutory parent.
General Statutes § 17a-112(o) provides:
In the case where termination of parental rights is granted, the guardian of the person or statutory parent shall report to the court within thirty days of the date judgment is entered on a case plan, as defined by the federal Adoption Assistance and Child Welfare Act of 1980, for the child which shall include measurable objectives and time schedules. At least every three months thereafter, such guardian or statutory parent shall make a report to the court on the progress made on implementation of the plan . . . If the court determines that the department has not made reasonable efforts to place a child in an adoptive placement or that reasonable efforts have not resulted in the placement of the child, the court may order the Department of Children and Families, within available appropriations, to contract with a child-placing agency to arrange for the adoption of the child. The department, as statutory parent, shall continue to provide care and services for the child while a child-placing agency is arranging for the adoption of the child.
In determining the best interest of a child in a TPR context, see In re Ryan R., supra, 102 Conn.App. at 625-27 and page 48-49, supra, the court also considers and applies, inter alia, the concepts of closure and permanency:
It is abundantly clear that the court gave careful consideration to the concepts of closure and permanency and did not simply use those terms as empty incantations.
In re Davonta V., supra, 98 Conn.App. at 53. The Appellate Court also referred to stability and permanency concepts in Alejandro L.:
In its 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. In support of that finding, the court noted that much of the children's short lives had been spent in the custody of the commissioner, and that the children needed stability and permanency in their lives. On the basis of those facts, we conclude that the court's determination that the respondent's parental rights should be terminated was not clearly erroneous.
In re Alejandro L., supra, 91 Conn.App. at 262.
4. The standard of clear and convincing evidence:
In In re Cheyenne A., 59 Conn.App. 151, 158-59, 756 A.2d 303 (2000), cert. denied, 254 Conn. 940 (2000) the Appellate Court explained the standard of proof by clear and convincing evidence:
While it is true that evidence of the respondent's acts of omission was largely circumstantial, that evidence was sufficient. The law does not distinguish between direct and circumstantial evidence as far as probative force is concerned. State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984). The standard of clear and convincing proof used in this case denotes a degree of belief that lies between the belief that is required to find the truth or existence of the issuable fact in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution. Dacey v. Connecticut Bar Ass'n., 170 Conn. 520, 536-37, 368 A.2d 125 (1976). In a criminal case, the jury may draw reasonable, logical inferences from the facts proven as long as they do not resort to speculation and conjecture. State v. Festo, 181 Conn. 254, 259, 435 A.2d 38 (1980). In a case involving substantial circumstantial evidence, the cumulative impact of a multitude of facts, and not any one fact, may establish guilt. State v. Bember, 183 Conn. 394, 397, 439 A.2d 387 (1981). Insofar as circumstantial evidence can be and is routinely used to meet the higher standard of proof in a criminal prosecution, so can it be used in a case such as this where the applicable standard is that of clear and convincing proof. (Internal quotation marks omitted.) In re Juvenile Appeal (85-2), supra, 3 Conn.App. 192-93.
In Miller v. Commissioner of Corrections, 242 Conn. 745, 794-95 (1997), Justice Borden also explained such clear and convincing standard of proof:
The clear and convincing standard of proof is substantially greater than the usual civil standard of a preponderance of the evidence, but less than the highest legal standard of proof beyond a reasonable doubt. It "is sustained if the evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist." (Emphasis added; internal quotation marks omitted.) State v. Bonello, 210 Conn. 51, 66, 554 A.2d 277, cert. denied, 490 U.S. 1082, 109 S.Ct. 2103, 104 L.Ed.2d 664 (1989).
Although we have characterized this standard of proof as a "middle tier standard"; J. Frederick Scholes Agency v. Mitchell, 191 Conn. 353, 358, 464 A.2d 795 (1983); and as "an intermediate standard"; State v. Davis, supra, 229 Conn. 293; between the ordinary civil standard of a preponderance of the evidence, or more probably than not, and the criminal standard of proof beyond a reasonable doubt, this characterization does not mean that the clear and convincing standard is necessarily to be understood as lying equidistant between the two. Its emphasis on the high probability and the substantial greatness of the probability of the truth of the facts asserted indicates that it is a very demanding standard and should be understood as such . . . We have stated that the clear and convincing evidence standard "should operate as a weighty caution upon the minds of all judges, and it forbids relief whenever the evidence is loose, equivocal or contradictory." (Internal quotation marks omitted.) Lopinto v. Haines, 185 Conn. 527, 539, 441 A.2d 151 (1981). . .
(Footnotes omitted.)
5. Weight to be given to testimony from court-appointed psychologists:
In Davonta V., supra, 98 Conn.App. at 60 n. 3, Judge Schaller, dissenting, wrote:
"The psychological testimony from professionals is rightly accorded great weight in termination proceedings. In re Nicolina T., 9 Conn.App. 598, 605, 520 A.2d 639, cert. denied, 203 Conn. 804, 525 A.2d 519 (1987)." (Internal quotation marks omitted.) In re Kezia M., 33 Conn.App. 12, 22, 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993). (Emphasis added.)
In an earlier case, the Appellate Court also stated essentially the same proposition:
Psychological testimony from professionals is appropriately accorded great weight in termination proceedings.
In re Shyliesh H., 56 Conn.App. 167, 176, 743 A.2d 165 (1999). (Emphasis added.)
However:
As in other areas where expert testimony is offered, a trial court is free to rely on whatever parts of an expert's opinion the court finds probative and helpful . . . In family cases in particular, it would be anomalous to require a trial court to assign particular weight to a report which is based on statements that the trial court may evaluate differently and on circumstances that may have changed.
Yontef v. Yontef, 185 Conn. 275, 281-82, 440 A.2d 899 (1981). See also CT Page 19140 Ford v. Ford, 68 Conn.App. 173, 190 (2002):
"[A] trial court is free to rely on whatever parts of an expert's opinion the court finds probative and helpful." Yontef v. Yontef, 185 Conn. 275, 281, 440 A.2d 899 (1981).
6. The construction of General Statutes § 17a-112:
As set forth above, General Statutes § 17a-112(q) provides that the "provisions of this section shall be liberally construed in the best interest of any child for whom a petition under this section has been filed."
However, "[f]amily reunification is an important social objective. As our Supreme Court recently has reminded us: `[A]n important goal of the child protection statutes, in addition to protecting children from abuse and neglect, is to preserve family integrity by . . . teaching parents the skills they need to nurture and care for their children.' Teresa T. v. Ragaglia, 272 Conn. 734, 754, 865 A.2d 428 (2005)." In re Christina M., 90 Conn.App. 565, 570-71, 877 A.2d 941 (2005), affirmed, 280 Conn. 474 (2006).
7. The balancing of the legitimate interests of the parents, children and the state of Connecticut:
Each termination of parental rights case requires consideration of the interests of all parties, but as set forth above, the statutory standards require a focus on the best interests of the child, not the wishes or best interests of the parents. Nevertheless:
The desire and right of a parent to maintain a familial relationship with a child cannot be separated from the desire and best interest of a child either to maintain or to abandon that relationship, or the interest of the state in safeguarding the welfare of children. The legitimate interests of parent, child and state require a balancing of the factors involved in those interests . . . In every case involving parental rights, a struggle exists between parents and the state to determine what is in the child's best interest, the child being the focus of the struggle. . .
(Citations omitted.) In re Shaquanna M., 61 Conn.App. 592, 598-99, 767 A.2d 155 (2001).
Former Chief Justice Peters has noted:
Cases involving the termination of parental rights are always difficult . . . Accordingly, the court sought the proper balance between the parents' constitutionally protected interest in the care, custody and control of their children, and the interest of the state, acting as parens patriae, to protect the children's health and safety.
In re Christina M., supra, 90 Conn.App. at 566-67.
GENERAL STATUTES § 17A-112(k) FINDINGS:
The court has made findings earlier in this decision, some of which relate to the seven statutory factors. See pages 6-32, supra. In addition to those findings, the court makes the following findings:
1. The timeliness, nature and extent of services offered, provided and made available to the parent and each child by an agency to facilitate the reunion of each child with the parent.A. The mother:
The mother has been offered, provided with or otherwise has obtained a multitude of services as set forth in the exhibits and as testified to by DCF social workers during the trial. The services have included assistance in locating housing; repeated substance abuse assessment and treatment, including but not limited to residential treatment; detoxification; substance dependence counseling; relapse prevention; individual counseling; group counseling; couples counseling; outpatient treatment; drug testing; methadone maintenance; Narcotics Anonymous meetings; parenting classes; mother/child residence programs; visitation and supervised visitation; transportation; administrative case reviews; and case management.
A. The father:
The father has been offered, provided with or otherwise has obtained a multitude of services as set forth in the exhibits and as testified to by DCF social workers during the trial. The services have included assistance in locating and obtaining housing; substance abuse assessment and treatment; substance dependence counseling; relapse prevention; individual counseling; group counseling; couples counseling; outpatient treatment; methadone maintenance; Narcotics Anonymous meetings; drug testing; parenting classes; visitation and supervised visitation; transportation; administrative case reviews; and case management.
C. The children have been provided with foster care services; medical services; visitation and supervised visitation with the parents; transportation; counseling; administrative case reviews and case management services.
2. Whether DCL has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980 as amended.DCF has made reasonable efforts to reunite the family. See 1. above, and discussions of reasonable efforts throughout this memorandum of decision.
3. The terms of an applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order(s).On January 14, 2005, January 21, 2005, February 25, 2005, June 30, 2006, January 8, 2007, and May 4, 2007, the court ordered specific steps for one or both parents. The following were included in such specific steps:
A. The mother and the father did not keep all appointments set by or with DCF. (Exhibit 3, social study, 3.)
B. The mother and the father did not always keep their whereabouts known to DCF, id., 3-4, 13-14, or report changes to their households. Id., 11, 18.
One egregious example occurred in June 2005, when the mother was forced because of her drug-induced, out-of control, disruptive behavior to leave her subsidized apartment, and then she almost immediately left the home of the elderly maternal great-grandmother to live with the children in her automobile. Id., 3-4. The worker eventually (within seven-ten days) located her at the methadone clinic. Id. This also was one example where the children spent a substantial period of time with the mother when she was unable adequately to care for them.
Prior to August 28, 2006, there was a period of time when the father lived in motels and with friends and he did not always keep DCF informed of where he was living.
C. When she was in a residential facility, the mother "participated in weekly individual counseling, group counseling and parenting education." Id., 4. The counseling "focused on substance dependence issues, relapse prevention, and self-esteem issues." Id. None of such counseling to the date of trial has been successful.
The mother and the father "participated in couples counseling for a short time in the summer of 2005. . ." Id., 5. This was precipitated by an affair the father had.
The father was unsuccessfully discharged from a counseling facility because of missed appointments. Id., 14. He failed to attend group treatment sessions at the methadone provider. Id. He did not comply with DCF's recommendations for individual counseling and parenting classes.
In November 2006, the father was referred to another individual counseling provider. The father "did not follow through with this referral and begin counseling until March 2007." Id.
D. The mother's continuing substance abuse, treatment and relapses are set forth in the exhibits (see, e. g., exhibit 3, social study, 5-9), testimony and in this decision.
The father also has a history of substance abuse. He has been more successful than the mother in avoiding relapse into use of cocaine and heroin. However, prior to and as of August 28, 2006, the date of the filing of the TPR petitions, and through the dates of trial, the father abused and was dependent on alcohol.
E. The mother and the father signed releases requested by DCF.
F. The mother obtained but was unable to keep adequate housing. The mother was unable to maintain legal employment.
In May 2007, the father obtained adequate housing (but its second floor location presented safety issues for the children). The father is able to maintain legal employment, but is being paid "under the table."
G. While each parent has missed some visits, in general each parent has visited when such visits are scheduled.
4. The feelings and emotional ties of each child with respect to his or her parents, any guardian of the person 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.Each child has a parent-child bond with each of the parents. (Exhibit 13, 13 and testimony.) However, the evaluator did not evaluate the relationship of the children with the foster parents. The court finds that at the time of the trial the foster parents were and are the primary psychological parents of the children.
5. The age of each of the children:
Dillon is three years, eight months old.
Carly is two years, eight and one-half months old.
6. The efforts each parent has made to adjust his or her circumstances, conduct or conditions to make it in the best interests of the children to return home in the foreseeable future.Unfortunately, as set forth throughout this memorandum of decision, the mother has not been able to adjust her circumstances, conduct or conditions to make it in the best interest of Dillon or Carly to return to her in the foreseeable future.
The father has made positive efforts to avoid any involvement with the criminal system and to remain free from cocaine and heroin. He continues on methadone maintenance, and has a good relationship with his program counselor. However, the father has not been regularly tested for alcohol consumption or marijuana use. There are reports from several different sources about the father smelling of alcohol and of him attempting to camouflage such odor. He has had the same apartment for approximately five months. He seems to have some work but is paid "under the table." He did not have sufficient funds for a security deposit on his current apartment.
While the father has made positive efforts, prior to and on August 28, 2006, and at present, he has not been able to adjust his circumstances, conduct or conditions to make it in the best interest of Dillon or Carly to return to him in the foreseeable future. As a long-term substance abuser with alcohol and mental health issues, the father continuously needs to focus on his own sobriety, and such focus should not be deflected by the pressure and responsibility of caring for two young children:
As set forth in In re Halle T., supra, 96 Conn.App. at 835-36:
[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 child 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." (Citations omitted; emphasis added; internal quotation marks omitted.) In re Alejandro L., 91 Conn.App. 248, 259-60, 881 A.2d 450 (2005); see also In re Amneris P., 66 Conn.App. 377, 383-84, 784 A.2d 457 (2001); In re John G., 56 Conn.App. 12, 17-18, 740 A.2d 496 (1999).
The same principles apply to the father in this case.
Namely, the respondent's sobriety is too fragile and the risk of relapse is too great. H[is] whole support system would be enormously taxed if the children were returned to h[im], thereby adding to the risk of reunification.
In re Kasheema L., supra, 56 Conn.App. at 489; see also pages 37 and 38, fn 7, supra.
Given their circumstances on August 28, 2006, and at present, the court finds that neither the mother nor the father's rehabilitation can be realized within a reasonable time given the age and needs of each of the children. In re Halle T., supra, 96 Conn.App. at 837-38; see page 37, supra.
7. The extent to which a parent has been prevented from maintaining a meaningful relationship with the children by the unreasonable act or conduct of the other parent of the children, or the unreasonable act of any other person or by the economic circumstances of the parent.There was no evidence presented that the mother has been prevented from maintaining a relationship with Dillon and Carly for any reasons other than the predictable consequences of her actions, behavior, choices and omissions.
Although the court had some information, the mother did not provide specific information concerning her current or past economic circumstances.
There was no evidence presented that the father has been prevented from maintaining a relationship with Dillon and Carly.
Although the court had some information, the father did not provide specific information concerning his current or past economic circumstances.
WITH RESPECT TO THE MOTHER OF DILLON AND CAIRLY, DCF HAS PROVED, BY CLEAR AND CONVINCING EVIDENCE, THE GROUNDS B(i) AND E ALLEGATIONS OF ITS TERMINATION OF PARENTAL RIGHTS PETITIONS; AND
WITH RESPECT TO THE FATHER OF DILLON AND CARLY, DCF HAS PROVED, BY CLEAR AND CONVINCING EVIDENCE, THE GROUND B(i) ALLEGATIONS OF ITS TERMINATION OF PARENTAL RIGHTS PETITIONS.
The court finds that DCF has alleged and proved, by clear and convincing evidence, that
(1) this court has jurisdiction over the matter and the parties;
(2) Dillon and Carly were previously adjudicated neglected;
(3) prior to filing its termination petitions, DCF made reasonable efforts to reunify the mother with Dillon and Carly through offers of and provision of services to her, Dillon and Carly;
(4) prior to filing its termination petitions, DCF made reasonable efforts to reunify the father with Dillon and Carly through offers of and provision of services to him, Dillon and Carly, although after October 13, 2005, the court found that it was not necessary for DCF to continue to make reasonable efforts to reunify Carly and Dillon with father (see page 4, para. 17);
(5) prior to the filing of the termination petitions, and thereafter through the trial, the mother was unable or unwilling to benefit from the offers of and provision of services to the point where she could be considered to be a parental resource for reunification;
(6) prior to the filing of the termination petitions, and thereafter through the trial, the father was unable or unwilling to benefit from the offers of and provision of services to the point where he could be considered to be a parental resource for reunification;
(7) because of her circumstances and issues as set forth in the evidence and in this decision, (i) after Dillon and Carly were removed from her for the last time (ii) after the neglect adjudication, and (iii) prior to the filing of the TPR petition and thereafter through the trial, the mother failed to achieve the degree of personal rehabilitation that
(a) encouraged the belief that prior to the filing of the TPR petition,
(b) would encourage the belief that within a reasonable time after the filing of such petition, or
(c) would encourage the belief within a reasonable time in the future, considering Dillon's and Carly's ages and needs, she could assume a responsible position in their lives;
(8) because of his circumstances and issues as set forth in the evidence and in this decision, (i) after Dillon and Carly were removed from the mother for the last time (ii) after the neglect adjudication, and (iii) prior to the filing of the TPR petition and thereafter through the trial, the father failed to achieve the degree of personal rehabilitation that
(a) encouraged the belief that prior to the filing of the TPR petition,
(b) would encourage the belief that within a reasonable time after the filing of such petition, or
(c) would encourage the belief within a reasonable time in the future, considering Dillon's and Carly's ages and needs, he could assume a responsible position in their lives; and
(9) the mother is the parent of two children under the age of seven years who were adjudicated neglected or uncared for, and she has failed, is unable or is unwilling to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the age and needs of each child, she could assume a responsible position in the life of each child and the mothers parental rights to another child were previously terminated pursuant to a petition filed by the Commissioner of Children and Families.
THE BEST INTEREST OF DILLON:
The court has considered the best interest of Dillon. The court has considered whether it is in the best interest of Dillon to be returned to the mother or the father, including whether the mother or the father reasonably could be expected and relied upon to provide the safe, secure, nurturing, stable, violence-free, drug and alcohol abuse-free and permanent environment idealized in the statutes and case law, and the court has considered ". . . the child's interests in sustained growth, development, well-being, and continuity and stability of its environment. . ." In re Ryan R., supra, 102 Conn.App. at 625-26.
The court has considered, inter alia, the evidence presented concerning Dillon's, the mother's and the father's situations and circumstances at the time of and prior to Dillon's removal from the mother and prior to the filing of the neglect petition; Dillon's current situation, needs and circumstances; the length of time Dillon has been out of the mother's care, custody and control and in foster care; the father's lack of provision of such care at any time except for an approximately two week period after Carly's birth; the mother's continuing personal issues, including chronic, long-term substance abuse issues and mental health issues, repeated relapse and lack of employment; the father's continuing personal issues, including his prior history of substance abuse issues, and currently identified alcohol and mental health issues; the father's prior transience; his employment circumstances; and the reports of Dillon's growth, progress and development in foster care. The court finds, by clear and convincing evidence, that it is in the best interest of Dillon, and that it is necessary for his well-being, growth, development, safety, security, stability, continuity, consistency and permanency, that the rights of the mother and the father be terminated.
THE BEST INTEREST OF CARLY:
The court has considered the best interest of Carly. The court has considered whether it is in the best interest of Carly to be returned to the mother or the father, including whether the mother or the father reasonably could be expected and relied upon to provide the safe, secure, nurturing, stable, violence-free, drug and alcohol abuse-free and permanent environment idealized in the statutes and case law, and the court has considered ". . . the child's interests in sustained growth, development, well-being, and continuity and stability of its environment. . ." In re Ryan R., supra, 102 Conn.App. at 625-26.
The court has considered, inter alia, the evidence presented concerning Carly's, the mother's and the father's situations and circumstances at the time of and prior to her removal from the mother and prior to the filing of the neglect petition; Carly's current situation, needs and circumstances; the length of time Carly has been out of the mother's care, custody and control and in foster care; the father's lack of provision of such care at any time; the mother's continuing personal issues, including chronic, long-term substance abuse issues and mental health issues, repeated relapse and lack of employment; the father's continuing personal issues, including his prior history of substance abuse issues, and currently identified alcohol and mental health issues; the father's prior transience; his employment circumstances; and the reports of Carly's growth, progress and development in foster care. The court finds, by clear and convincing evidence, that it is in the best interest of Carly, and that it is necessary for her well-being, growth, development, safety, security, stability, continuity, consistency and permanency, that the rights of the mother and the father be terminated.
CONCLUSION AND ORDERS:
Having considered the evidence and the statutory, Practice Book and case law requirements, the court finds, by clear and convincing evidence:
(A) as to the mother of Dillon and Carly, DCF has proved, by clear and convincing evidence, Ground B(i), failure to rehabilitate; and Ground E, failure to rehabilitate with children under seven years of age and a prior termination of parental rights;
(B) as to the father of Dillon and Carly, DCF has proved, by clear and convincing evidence, Ground B(i), failure to rehabilitate; and
(C) it is in the best interest of Dillon and Carly to terminate the parental rights of the mother and the father.
Accordingly, it is hereby ORDERED that the parental rights of the mother and the father to Dillon and Carly are hereby terminated.
The Commissioner of the Department of Children and Families is appointed as the statutory parent of Dillon and Carly. The initial status report concerning each of such children shall be submitted, as required, within thirty days hereof. Quarterly reports and annual permanency plans shall be submitted as required in accordance with statutory requirements.
Judgment shall enter accordingly.
CT Page 19150