Opinion
No. CP01-002554-A
August 27, 2003
MEMORANDUM OF DECISION
On April 18, 2002, the Department of Children and Families (DCF) filed petitions against Ricardo M. and Glenda M., seeking to terminate their parental rights (TPR) to their biological children. This memorandum of decision addresses the issues raised only in the petitions brought against Ricardo M., seeking TPR with regard to his sons Jonathan M., born December 19, 1995; John Carlos M., born October 18, 1996; and Christian, born December 22, 1998. The TPR petition against Ricardo M. alleges the grounds of failure to achieve rehabilitation and an act or acts of omission or commission; the petitioner withdrew the second ground at the time of closing argument. For the reasons stated below, the court finds these matters in favor of the petitioner and accordingly terminates Ricardo M.'s parental rights to the children at issue.
To best serve the interests of the children at issue, the court will deal separately with the issues raised by DCF's pending TPR petitions against Glenda M., the mother of Jonathan M., John Carlos M., Christian M. and their half-brother Daniel R. See General Statutes § 46b-121b(b). Thus, although the TPR cases against Glenda M. and Ricardo M. were tried together, this memorandum of decision disposes of only the TPR issues brought against the respondent father.
Trial of this highly-contested matter took place on April 16 and 17, and May 19, 2003. The petitioner, the respondents and the children were vigorously represented throughout the proceedings. The Child Protection Session of the Superior Court, Juvenile Matters, has jurisdiction over the pending case. Notice of this proceeding has been provided in accordance with the applicable provisions of the Practice Book. No action is pending in any other court affecting custody of the children at issue.
Pursuant to statute, the children's counsel also served as their court-appointed guardian ad litem (GAL).
I. FACTUAL FINDINGS CT Page 9091-b
The Court has thoroughly reviewed the verified petitions, the TPR social study, and the multiple other documents submitted in evidence which included court records, police reports, and records of the Department of Public Safety which are relevant to the petitions pending against Ricardo M. The court has utilized the applicable legal standards in considering this evidence and the testimony of trial witnesses, who included a police officer, DCF social workers, the children's therapist, a paternal uncle and a community service worker. The court also received a report from the children's GAL. Upon deliberation, the court finds that the following facts were proven by clear and convincing evidence at trial.
The Social Study for Termination of Parental Rights was submitted in evidence as Exhibit 1. Practice Book § 35a-9.
"It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony." In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000); see also In re Hector L., 53 Conn.App. 359, 366, 730 A.2d 106 (1999). "The probative force of conflicting evidence is for the trier to determine . . . In re Ashley E., 62 Conn.App. 307, 316, 771 A.2d 160, cert. denied 256 Conn. 910, 772 A.2d 601 (2001)." In re Jonathon G., 63 Conn.App. 516, 528, 777 A.2d 695 (2001). It is the court's province to determine which expert testimony, if any, is more credible than other expert opinion evidence provided for review. Keans v. Bocciarelli, 35 Conn.App. 239, 241-42, 645 A.2d 1029, cert. denied, 231 Conn. 934, 650 A.2d 172 (1994).
As was his right, the respondent father did not personally testify before the court. See Practice Book § 34-1.
Additional facts will be referenced as necessary.
I.A. HISTORY OF THE PROCEEDINGS
Ricardo M. was born on October 12, 1956. He is a high school graduate who has worked in food service and landscaping; he has never served in the U.S. military. Glenda M. was born on July 8, 1976. Glenda M.'s first child, Daniel R., was born on January 20, 1994; at the time, Glenda M. was seventeen years old. Ricardo M. and Glenda M. met several months later, and lived together with Daniel. The couple's first son, Jonathan M., was born on December 19, 1995; their second son, John Carlos M., was born on October 18, 1996. Ricardo M. and Glenda M. married on February 23, 1997. When their third son, Christian, was born on December 22, 1998, he became the fourth child living in their household. (Exhibit 1.)
Daniel's father Enrico F. is deceased. (Exhibit 1.)
Ricardo M.'s first marriage ended in 1994. (Exhibit 1.)
DCF has been involved with Ricardo M.'s family since May of 2000, when the department received reports concerning the lack of supervision and basic necessities provided for the children in their household, and Daniel's lack of necessary educational services. (Exhibits 1, 4; Testimony of Alicia F.) An Order of Temporary Custody (OTC) was issued on May 22, 2000. On May 31, 2000, this order was confirmed by the court (Dennis, J.), and specific steps were issued to guide Ricardo M. toward reunification with his children. (Exhibits 1, 4.) On July 31, 2000, the children were returned, under protective supervision, to the home of Ricardo M. and Glenda M. to whom the MFAP was providing individual counseling, medical management, a home health aide and visiting nurse services. DCF satisfied itself that the children were safe and well-cared for in the custody of Ricardo M. and Glenda M., and the protective supervision was CT Page 9091-c allowed to lapse. DCF closed its case on the family in March of 2001. (Exhibit 1.)
I.A. EVENTS PRIOR TO THE UNCARED FOR ADJUDICATION OF FEBRUARY 19, 2002
DCF again became concerned about Ricardo M.'s family in late June of 2001, when a local social support agency reported that inadequate care was being provided to the children, and that service providers were not being allowed to enter the home.
On July 23, 2001, at a time when Ricardo M. was responsible for supervising the children, he allowed five-year-old Jonathan, seven-year-old Daniel and two-year-old Christian to play without supervision in a roadway upon which traffic often traveled fast. As a result, Christian was placed in a position in which he was almost run over by a passing police car. Ricardo M. was immediately arrested and charged with three counts of Risk of Injury to a Minor. While Ricardo M. was being held in police custody awaiting arraignment, Glenda M. was also arrested, placed in police custody, and then hospitalized. The children had stayed at home under the care of an unrelated neighbor, as neither parent has available family support resources. (Exhibits 1, 6.)
Ricardo M.'s records with the Department of Public Safety show that he had one prior arrest for an assault in December of 2003. Convicted of Breach of Peace, he was sentenced to six months of incarceration, suspended, with one year of probation. (Exhibit 11.) In a child protection matter, evidence of a parent's arrests may be considered by the trial court because "even though those arrests did not result in conviction; that evidence was relevant to establish that the respondent's habits and acts of misconduct [were competent to deny the] child the care, guidance or control necessary for [his or her] physical, educational, moral or emotional well-being." In re Helen B., 50 Conn.App. 818, 819, 719 A.2d 907 (1998). Moreover, in a termination action, "[b]ecause the parent-child relationship is at issue, all relevant facts and family history should be considered by the trial court . . . The parent-child relationship presents an ongoing dynamic that cannot be frozen in time. The entire picture of that relationship must be considered whenever the termination of parental rights is under consideration by a judicial authority." (Emphasis added.) In re Brianna F., 50 Conn.App. 805, 814, 719 A.2d 478 (1998).
On July 24, 2001, DCF invoked a 96-hour hold on the children and placed them in foster care. On July 26, 2001, a new ex parte OTC was issued (Riefberg, J.); this order was sustained (Riefberg, J.) after hearing on July 30, 2001. The children have remained in DCF custody since that time pursuant to court orders. (Exhibit 1.)
On July 30, 2001 the court (Riefberg, J.), imposed new specific steps upon Ricardo M. Among other things, these steps prohibited further involvement with the criminal justice system; required him to maintain adequate housing and legal income; and to inform DCF of any changes in the composition of his household. (Exhibit 2.)
On December 27, 2001, Ricardo M. was stopped by police and was found to be in personal possession of "4 `bundles' (a `bundle' is a street term for 10 glassine envelopes of heroin held together by a rubber band) from his person." (Exhibit 8.) A subsequent search of Ricardo M.'s home yielded approximately sixteen thousand eight hundred dollars worth of heroin, packaged for CT Page 9091-d street sale in 840 glassine envelopes which the respondent father had obtained and then stored in a dresser drawer, a location that would have been easily accessible to curious young children if they had been living in the house. All of these envelopes were stamped "`Good News' in blue."
It is the factfinder's prerogative "to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Internal quotation marks omitted; citation omitted.) State v. Copas, 252 Conn. 318, 338, 746 A.2d 761 (2000); see also In re Adalberto S., 27 Conn.App. 49, 53, 604 A.2d 822 (1992).
Ricardo M. was taken into police custody and charged with Possession of Narcotics. Upon the posting of a two hundred thousand dollar bond, Ricardo M. left police custody. (Exhibits 1, 8, 11; Testimony of Paul L.)
Glenda M. and Juana V. were also present at Ricardo M.'s home when this heroin was found, and they, too, were arrested on December 27, 2001. (Testimony of Paul L.)
On January 8, 2002, after he had caused an unreasonable disturbance at the local dog pound, the police found Ricardo M. to be in possession of six more glassine envelopes of heroin, held together by a rubber band and "stamped `Good News' in blue" just like the envelopes of heroin that were found at Ricardo M.'s home on December 27, 2001. Ricardo M. was arrested and charged with Possession of Narcotics, two counts of Sale of Illegal Drugs, and Disorderly Conduct. He has remained incarcerated since that date. (Exhibits 1, 8, 9, 11; Testimony of Paul L.) Due to his involvement with drug-related activities, Ricardo M.'s family was evicted from their public housing. (Exhibits 1, 11.)
I.B. EVENTS FOLLOWING THE UNCARED FOR ADJUDICATION OF FEBRUARY 19, 2002
On August 30, 2002, Ricardo M. was convicted on a substitute information of Sale of Narcotics in violation of General Statutes § 21a-277(a), relating to the offense that had occurred on December 27, 2001. Incarcerated since January 2002, he was then sentenced to serve thirteen years of incarceration for this offense; his other pending charges were nolled. (Exhibit 11.) Ricardo M. has remained incarcerated through these proceedings, and he is not likely to be released from prison in the reasonably foreseeable future.
The TPR petitions at issue were filed against Ricardo M. on April 18, 2002.
I.C. THE CHILDREN: JONATHAN, JOHN CARLOS AND CHRISTIAN
From mid-May through mid-July 2000, during their first removal from the custody of Ricardo M. and Glenda M., all four children were placed together in a temporary foster home. (Exhibit 1.) CT Page 9091-e
During the second removal, Jonathan has been placed in foster care with his older half-brother Daniel. Daniel exhibits highly parentified behavior in his foster home. He often inquires about Glenda M.'s health and asks to see her. Jonathan also asks about Glenda M., but to a lesser extent. Both Daniel and Jonathan have a strong bond with their foster mother. They are well-adjusted in this placement, and perform well in school. The boys' foster mother loves both children and is interested in adopting the siblings, if they become available. (Exhibit 1; Testimony of D'Oyen B.)
The evidence does not reflect that either Daniel or Jonathan inquire about Ricardo M., although they willingly participate in visits at his place of incarceration. (Exhibit 1.)
Following their removal from Ricardo M. and Glenda M. in July 2001, John Carlos and Christian were placed together in foster care. At the time, John Carlos was over four and a half years old, and Christian was two and a half. Both children have attended therapeutic day care in an effort to resolve aggressive and disruptive behaviors. They are maturing and have improved their academic, behavioral and socialization skills under the supervision of their foster mother. However, this foster mother does not wish to adopt either child. (Exhibit 1.)
As with Daniel and Jonathan, the evidence does not reflect that either John Carlos or Christian inquire about Ricardo M., although they too willingly participate in prison visits. (Exhibit 1.)
All three children have received many months of weekly counseling through Ingrid R. at the CG-DPH program, to address their adjustment issues related to their status in foster care. Each of the children is eligible for continued CG-DPH counseling through age seventeen. (Testimony of Ingrid R.)
II. ADJUDICATION
In the adjudicatory phase of this hearing, the court has considered the evidence and testimony related to circumstances occurring through the close of trial, as failure to achieve rehabilitation is the sole ground alleged against Ricardo M. Upon review, as discussed below, the court has determined that statutory grounds for termination exist as to this respondent.
"Under § 17a-112, a hearing on a petition to terminate parental rights consists of two phases: the adjudicatory phase and the dispositional phase. During the adjudicatory phase, the CT Page 9091-s trial court must determine whether one or more of the four grounds for termination of parental rights set forth in [§ 17a-112(j)] exists by clear and convincing evidence. The commissioner . . . in petitioning to terminate those rights, must allege and prove one or more of the statutory grounds." (Citation omitted.) In re Quanitra M., 60 Conn.App. 96, 102, 758 A.2d 863, cert. denied, 254 Conn. 903, 762 A.2d 909 (2000).
"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(j)(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 re Latifa K., 67 Conn.App. 742, 748, [ 789 A.2d 1024] (2002). Events occurring after the date of the filing of the TPR petition are particularly relevant to 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." (Emphasis in the original; external citations omitted.) In re Stanley D., supra, 61 Conn.App. 230.
II.A. LOCATION AND REUNIFICATION EFFORTS
As a predicate to granting a petition to terminate parental rights, our statutes require the court to find by clear and convincing evidence that "DCF has made reasonable efforts to locate the parent and to reunify the child with the parent, unless the court finds in [the TPR] proceeding that the parent is unable or unwilling to benefit from reunification efforts CT Page 9091-f provided such finding is not required if the court has determined at a hearing . . . that such efforts are not appropriate . . ." General Statutes § 17a-112(j)(1); see also In re Amneris P., 66 Conn.App. 377, 386, 784 A.2d 457 (2001). Here the court finds that the petitioner has met her burden of proving by clear and convincing evidence that the reunification efforts made by DCF were reasonable given the fact that Ricardo M. has been incarcerated during the entirety of the adjudicatory period. In addition, based on the clear and convincing evidence produced at trial, the court now finds that he is unable or unwilling to benefit from the reasonable reunification efforts contemplated by § 17a-112(j)(1). In re Ebony H., supra, 68 Conn.App. 348.
As the Appellate Court has recently explained, "the department may meet its burden concerning reunification in one of three ways: (1) by showing that it made such efforts, (2) by showing that the parent was unable or unwilling to benefit from reunification efforts or (3) by a previous judicial determination that such efforts were not appropriate." (Citation and quotation marks omitted.) In re Ebony H., 68 Conn.App. 342, 348, 789 A.2d 1158 (2002).
"Although `[n]either the word reasonable nor the word efforts is . . . defined by our legislature or by the federal act from which the requirement was drawn . . . [r]easonable efforts means doing everything reasonable, not everything possible.'" (Internal quotation marks omitted, external citation omitted.) In re Mariah S., 61 Conn.App. 248, 255, 763 A.2d 71 (2000), cert. denied, 255 Conn. 934, 767 A.2d 105 (2001). "[R]easonableness is an objective standard and whether reasonable efforts have been proven depends on the careful consideration of the circumstances of each individual case." (Internal quotation marks omitted.) In re Hector L., 53 Conn.App. 359, 372, CT Page 9091-t 730 A.2d 106 (1999). Only "reasonable" efforts are required as "[i]t is axiomatic that the law does not require a useless and futile act." (Citation omitted.) In re Antony B., 54 Conn.App. 463, 476, 735 A.2d 893 (1999).
On January 14, 2002, the court (Dennis, J.) found that further efforts toward reunification were no longer appropriate as to Ricardo M. or Glenda M. However, the transcript does not reflect whether or not this finding was based on clear and convincing evidence.
A review of the clear and convincing evidence impels this conclusion. As a part of its reasonable efforts to promote reunification of the family following the July 2001 OTC, DCF provided Ricardo M. with appropriate family treatment and permanency plans, case management services and administrative case reviews, and transportation so that the children could visit with him. To further promote family integrity, Ricardo M., Glenda M. and the children received comprehensive support services from MFAP, which extended case management, transportation, emergency financial aid, food supplements, home nursing services and a health aide to monitor the health of Glenda M., who had been the children's primary caretaker. MFAP also provided a Spanish-speaking parent aid to further assist Glenda M., and financial support to enable Ricardo M. to maintain adequate housing for his family. (Exhibit 1; Testimony of Alicia F., Stewart L.) However, after the OTC was granted, Ricardo M. began drawing back from MFAP's wrap-around service program. He made fewer demands for financial assistance. (Testimony of Stewart L.) He demonstrated his inability or unwillingness to cooperate with MFAP's broad-based and salutary services by allowing non-specified adult males to reside in his children's bedroom, inappropriately accepting remuneration in return. (Exhibit 1.)
From the OTC of July 2001 through the time of his incarceration in January 2002, DCF provided Ricardo M. with weekly supervised visits with the children. When he was first incarcerated, Ricardo M. requested that the children not be brought to see him at the prison. However, upon his subsequent request, DCF provided Ricardo M. with an opportunity to visit with his children at the prison once a month. These visits have continued to the present time. (Testimony of Alicia F.)
The respondent has offered no basis, in law or reason, for requiring DCF to duplicate in-home aides, financial support, rehabilitation services or other reunification services that are otherwise extended to a parent through a valid social service agency such as MFCG.
Once Ricardo M. was incarcerated as the result of his second drug arrest in January 2002, DCF was thereafter unable to extend any reunification services to him other than visitation, as the Department of Corrections (DOC) alone is able to designate rehabilitation services for particular inmates. (Exhibit 1.) See In re Roshawn R., 51 Conn.App. 44, 56-57, 720 A.2d 1112 (1998) (excusing DCF from providing reasonable efforts CT Page 9091-g at reunification for incarcerated parent). In prison, Ricardo M. has taken substance abuse education courses and is pursuing an academic program, as well. (Testimony of D'Oyen B.) However, his limited access to rehabilitation services will continue throughout the remainder of the thirteen-year sentence that Ricardo M. is obligated to serve under DOC custody, rendering him unable to timely and effectively benefit from any such reunification services as are contemplated by § 17a-112(j)(1). See In re Amneris P., supra, 66 Conn.App. 385 (parent must respond to reunification efforts in a timely way so as to assist the child).
As a related reunification effort, DCF subsequently investigated and considered placing the children with relatives. Ricardo M. proffered his brother Jorge M., as a relative caretaking resource. (Exhibit 1.) In early 2003, DCF honored Jorge M.'s request for a visit with the children. However, Jorge M. has not requested additional visits. He remains willing to care for the children, but has no housing sufficient to meet their needs. (Testimony of D'Oyen B., Jorge M.) DCF also responded to Ricardo M.'s brother Roberto who was willing to accept a transfer of guardianship, but would not adopt the children to provide them with a permanent home. In March 2003, DCF learned that Roberto M. was no longer available to the children, as he had left the country. Ricardo M.'s brother David also offered himself as a placement resource. However, DCF reasonably declined to place the children with David M. as he has a criminal history and also lacks housing that is adequate for the children. (Testimony of D'Oyen B.)
Reviewing the evidence in its totality, it is clearly and convincingly apparent that DCF's reunification efforts were thwarted not by the conduct of the department, but by the respondent's own behavior which led to his incarceration and subsequent sequestration from his children for the major period of their childhood. In re Amelia W., 62 Conn.App. 500, 506, 772 A.2d 619 (2001); see In re Ebony H., supra, 68 Conn.App. 350. The reasonable reunification efforts extended through MFAP toward Ricardo M. proved to be ineffective and futile, given his incarceration and failure to appropriately utilize the housing subsidies extended to him. As Ricardo M. remains imprisoned and functionally unable or unwilling to timely benefit from any reunification services contemplated by § 17a-112(j)(1), the petitioner has met her burden of proof on this issue.
Although Ricardo M. may argue that DCF's monthly visits CT Page 9091-u provide him with an insufficient opportunity to visit with his children, the court file does not reflect any efforts on the respondent father's behalf to enhance the visitation regimen. See In re Alexander C., 67 Conn.App. 417, 425, 787 A.2d 608 (2001), affirmed per curiam, 262 Conn. 308 (2003) (reasonable to expect parent make affirmative efforts to achieve increased contact with the child whose custody is at issue). Moreover, the clear and convincing evidence establishes that given the great distance from the children's residence to Ricardo M.'s place of incarceration, and given the children's school and therapeutic day care schedules, DCF acted reasonably in scheduling visits on a once-monthly basis. (Testimony of D'Oyen B.)
II.B. STATUTORY GROUNDS FOR TERMINATION — RICARDO M.'S FAILURE TO REHABILITATE — § 17a-112(j)(3)(B)(i)
The petitioner alleges that Ricardo M.'s parental rights should be terminated because he has failed to achieve rehabilitation within the meaning of § 17a-112(j)(3)(B). As the children were found to be uncared for on February 19, 2002, the critical issue for this court is whether the respondent father has achieved rehabilitation in the statutory sense. Applying the requisite legal standards and construing the statute in accordance with § 17a-112(p), the court finds this issue in favor of the petitioner.
General Statutes § 17a-112(j)(3)(B) provides that parental rights may be terminated by the Superior Court as to the parent of a child who "(i) has been found by the . . . 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."
"Personal rehabilitation as used in [Section 17a-112] refers to the restoration of a parent to his or her former constructive and useful role as a parent . . . [The statute] requires the trial court . . . to find, by clear and convincing evidence, that the level of rehabilitation [the parent] has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date [the parent] can assume a responsible position in [his] child's life. (Citations omitted; internal quotation marks omitted). In re Eden F., [ 250 Conn. 674, 706,741 A.2d 873 (1999)] . . . [I]n assessing rehabilitation, the critical issue is not whether the parent has improved [the] ability to manage [his or her] own life, but rather whether [the parent] has gained the ability to care for the particular needs of the child at issue." (Internal quotation marks and citation omitted). In re Sarah Ann K., 57 Conn.App. 441, 448, 749 A.2d 77 (2000). See also In re Amneris P., supra, 66 Conn.App. 384-85; In re Ashley S., 61 Conn.App. 658, 665, 769 A.2d 718, cert. denied 255 Conn. 250, 759 A.2d 63 (2001).
Section 17a-112(p) establishes that the provisions of § 17a-112(j)(3)(A) "shall be liberally construed in the best interests of any child for whom a petition under this section has been filed."
Several aspects of the clear and convincing evidence in this case compel the conclusion that Ricardo M. has yet to achieve a sufficient degree of rehabilitation as would encourage the belief that at some reasonable date in the future he could assume a responsible position in the lives of his children. See In re CT Page 9091-h Daniel C., supra, 63 Conn.App. 354; In re Ashley S., supra, 61 Conn.App. 665; In re Sarah Ann K., supra, 57 Conn.App. 448. First, as found in Part I.B., the evidence clearly and convincingly establishes that Ricardo M. will remain incarcerated, subject to DOC control, for a prolonged time into the future, as he serves the remainder of a thirteen-year sentence that was imposed in August of 2002. Even granting Ricardo M. credit for his pre-conviction incarceration from January through August 2002, as a practical matter, he will be physically unable to provide measurable parenting services for Jonathan, John Carlos, or Christian for the great majority of their childhood years, requiring physical, emotional, social, educational, and religious guidance and support to be provided by surrogates in his absence. For so long as he remains in DOC custody, Ricardo M. will lack the capacity to serve as an effective, responsible parenting resource for his children, as he will not be available to meet their age-commensurate needs for continuous supervision, nurturing, and assistance in completing the activities of daily living. During the years when he serves his term of imprisonment, in response to his conviction for a serious drug-related offense, Ricardo M. will not be physically present to assist any of the children in learning to develop a valid set of life skills, and he will be manifestly unable to provide them with the consistent moral guidance and emotional support they will require as they continue into their school years. If Ricardo M. serves his entire sentence, he will be discharged from the DOC in 2014, when the children will have been in care for over thirteen years. Given their ages and needs, it would be unreasonable and inappropriate to require them to wait for Ricardo M. to be discharged from the prison system, and to establish a secure, safe environment in which to live on his own, before enabling the children to be permanently placed in stable, reliable, and loving homes; the credible opinion of Ingrid R., the children's therapist, firmly supports the conclusion that Jonathan, John Carlos and Christian, who have lingered in foster care for so long, "should not be further burdened by having to wait for [their father] to achieve the level of competency necessary to parent [them] . . ." In re Amneris P., supra, 66 Conn.App. 385. (See Testimony of Ingrid R.)
It is Ricardo M.'s inability to function as a parent, now or in the reasonably foreseeable future, and not his incarcerated status per se, that leads the court to find that he has failed to achieve rehabilitation. See In re Jessica S., 51 Conn.App. 667, 673, 723 A.2d 356 cert. denied, 251 Conn. 901, 738 A.2d 1090 (1999). While acknowledging that the respondent's incarceration, in and of itself, does not dictate the determination that he has failed to achieve rehabilitation, it would be unreasonable for the court to overlook the fact that while he is serving his sentence, Ricardo M. simply will not be available to serve as a valid parent for his sons.
A second aspect of the clear and convincing evidence also establishes that Ricardo M. will not be able to play a responsible role in the lives of his children in the reasonably foreseeable future. The empirical evidence establishes that when Ricardo M. was at liberty, although he was the biological parent CT Page 9091-i of three children and the caretaker for a fourth, Ricardo M. had not developed the skills necessary to serve as a safe, dependable caretaker. Prior to his arrest in July 2001, Ricardo M. was well aware that his wife Glenda M. was physically unable to attend to the children's needs. However, instead of securing appropriate supervision and alternate child care on his own, and instead of seeking related support from the MFAP program which had extended comprehensive services to his family, Ricardo M. often inappropriately elected to utilize seven-year-old Daniel as the caregiver for the younger children. In addition, even though he had been arrested on December 27, 2001 and charged with possession of a very large quantity of heroin, and even though he is not a drug user himself, Ricardo M. continued to possess heroin for the purpose of selling this illegal drug to others. (Exhibits 1, 8.) Such conduct is not only criminal, but is absolutely inimical to safe parenting behavior, and dangerous to the health of children who could be exposed to drug activity. (Testimony of Ingrid R.)
A third aspect of the clear and convincing evidence further establishes that Ricardo M. has not achieved a degree of rehabilitation that is sufficient to enable him to serve as a valid parent for his children, in that although specific steps were assigned to assist Ricardo M. in achieving rehabilitation, he has failed to fulfill a number of significant measures. While there is no indication that Ricardo M. abused substances himself, he clearly violated the steps' prohibition against further involvement with the criminal justice system through his possession of a large amount of heroin as revealed on December 27, 2001, and through his subsequent possession of heroin on January 8, 2002. His arrests on these occasions, following his arrest and charge for three counts of Risk of Injury to a Minor in July 2002, constitute a clear violation of the court's expectation for lawful activity as a criteria of progress in rehabilitation. (Exhibit 2.) Moreover, Ricardo M. failed to comply with other significant measures of rehabilitation established through the imposition of the specific steps. He allowed three unrelated adult males to inhabit his apartment during the fall of 2001, but failed to honor the steps' requirement that he notify DCF of any change in the composition of his household. (Exhibit 2; Testimony of Alicia F.) Ricardo M. was evicted from his residence in a public apartment complex following his arrests in December 2001 and January 2002, further violating the steps' requirement that he maintain "adequate housing." (Exhibit 2.) Although he claimed to have maintained CT Page 9091-j lawful employment following July 2001, in compliance with the steps, he was unable or unwilling to provide any documentation of reported work activities. (Testimony of Alicia F.) Given the totality of the circumstances, the obvious inference is that Ricardo M.'s unlawful drug dealing was his only source of income during the period between the imposition of the OTC and his arrests in December 2001 and January 2002; such conduct was in clear violation of the letter and the spirit of the specific steps.
Jonathan, John Carlos and Christian are all young children who require stability and permanency in their lives in order to enhance their ability to thrive and develop in a healthy manner. (Testimony of Ingrid R.) Based on all the facts presented in this case the court finds that Ricardo M.'s rehabilitation is not foreseeable within a reasonable time; therefore, he will be unavailable to timely serve his children in a viable, permanent caretaking role. See In re Amneris P., supra, 66 Conn.App. 385; In re Daniel C., supra, 63 Conn.App. 353. In reaching this conclusion, the court has analyzed Ricardo M.'s relative lack of present rehabilitation as it relates to all the children's essential needs for a responsible parent who is accessible to them today, given their ages and stages of chronological maturity; the court has also analyzed John Carlos's and Christian's special emotional needs, which require an especially attentive and reliable parent-figure who can provide them with emotional stability, structure and predictability in their environment in order to help them develop appropriate behaviors and conduct. Even if Ricardo M. could now actively engage in rehabilitation, effectively utilizing any rehabilitative services offered by the DOC, and even if he develops the ability to maintain a lawful lifestyle after concluding his obligations to the DOC, those efforts at rehabilitation would be "too little and too late" for the children given the more than two years that have passed since their most recent entry into foster care, and the one and a half years that have passed since their adjudication as uncared for children. In re Sheila J., 62 Conn.App. 470, 481-82, 771 A.2d 244 (2001).
In reaching this conclusion, the court has further considered the evidence establishing that the children are all emotionally bonded to their absent father, whom they identify as their biological parent, and for whom they care very, very much. The court has measured this evidence against the clear and convincing evidence of Ricardo M.'s misleading but sincere promises to the CT Page 9091-k children; the children's present need for permanency; their need for residence in a structured and predictable environment in which they can learn to be independent while their physical and educational needs are well-attended to; and their emotional needs as well. (Testimony of Ingrid R.) As noted in Part III.B., our courts have recognized that "long-term stability is critical to a child's future health and development." In re Eden F., supra, 250 Conn. 709. On balance, the court has determined that in this particular case, the children's needs for a permanent resolution of Ricardo M.'s availability to serve as their parent clearly and convincingly outweigh the attachment they currently hold for their father. See Pamela B. v. Ment, 244 Conn. 296, 314, 709 A.2d 1089 (1998) (children's well-being must be weighed against the interest in preserving family integrity).
Thus, in its totality, the clear and convincing evidence compels the conclusion that Ricardo M. is unavailable due to his obligations to the criminal justice system, and remains without the qualities necessary to successfully parent Daniel, Jonathan, John Carlos and Christian. Thus, he lacks the ability to assume a responsible position in the lives of these children within a reasonably foreseeable time in the future. Accordingly, based on the clear and convincing evidence presented in this case, the court finds that the petitioner has proved Ricardo M.'s failure to achieve rehabilitation pursuant to § 17a-112(j)(3)(B).
III. DISPOSITION
As the court has concluded that statutory grounds for termination exist, it next "must determine whether termination is in the best interests of the child." (Citation and quotation marks omitted.) In re Quanitra M., supra, 60 Conn.App. 103; see also In re Valerie D., 223 Conn. 492, 511 and n. 15, 613 A.2d 478 (1992). In this dispositional phase the court has considered the evidence and testimony related to circumstances and events through the close of evidence.
The final element of the termination of parental rights statute, § 17a-112(j), requires that before granting a duly noticed petition for such termination, the court must find, "by clear and convincing evidence . . . (2) that termination is in the best interest of the child."
"[T]he question . . . to be decided in a dispositional phase is whether it is in the best interests of the child to sever the parent-child relationship. That is different from the question of who should have custody of the child if termination of parental rights is determined to be in the best interests of the child. See Practice Book § 33-5 [now § 33a-9]." In re Carissa K., 55 Conn.App. 768, 776, 740 A.2d 896 (1999). "In making this determination, the trial court can consider all events occurring prior to the date of the dispositional hearing, including those occurring after the filing of the termination petition." (Citation omitted.). In re Kasheema L., 56 Conn.App. 484, 488, 744 A.2d 441 (2000).
III.A. SEVEN STATUTORY FINDINGS
The court has made each of the seven written factual findings required by General Statutes § 17a-112(k) based upon the clear and convincing evidence presented at trial, and has considered the evidence relevant to each of these findings in deciding whether to terminate parental rights. See In re Jonathon G., 63 Conn.App. 516. CT Page 9091-l
III.A.1. TIMELINESS, NATURE AND EXTENT OF SERVICES — § 17a-112(k)(1)
While he was at liberty, multiple timely and appropriate services were provided for Ricardo M. and his family though MFAP and through DCF, as described in Parts I.B., II.A. and II.B. Once Ricardo M. became incarcerated in January 2002, DCF was unable to provide any services for the respondent father other than visitation. During his imprisonment, Ricardo M. has had monthly visitation with Jonathan, John Carlos, Christian and also Daniel.
III.A.2. REUNIFICATION EFFORTS PURSUANT TO FEDERAL LAW — § 17a-112(k)(2)
DCF made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended, through the provision of timely reunification services as described in Part III.A.1. Furthermore, the court has previously found that DCF made reasonable efforts to prevent the removal of these children from their home, as contemplated by federal law.
III.A.3. COMPLIANCE WITH COURT ORDERS — § 17a-112(k)(3)
Ricardo M. has partially complied with the specific steps imposed in July 2002, as described in Exhibit I, the DCF Social Study. (See also Testimony of Alicia F.) However, as found in Part II.B., he failed to comply with critical aspects of the steps by repeatedly possessing heroin with the intent to sell this narcotic, leading to his involvement with the criminal justice system; by failing to advise DCF of changes in the composition of his household; and by failing to maintain the adequate housing that had been secured for him by the MFAP, as he was evicted due to his criminal activity.
III.A.4. THE CHILDREN'S FEELINGS AND EMOTIONAL TIES — § 17a-112(k)(4)
As found in Part I.C., Jonathan maintains great affection for his biological mother, and for his pre-adoptive foster mother, as well. John Carlos and Christian are more bonded to their current foster-mother. All three children are happy and excited to see the respondent father when they visit with him at his place of incarceration. However, given the idealistic promises Ricardo M. CT Page 9091-m has made to Jonathan, John Carlos and Christian concerning an early, comfortable reunification, the court has insufficient basis from which to ascertain how bonded the children are to the respondent father. (Testimony of D'Oyen B.)
III.A.5. AGES OF THE CHILDREN — § 17a-112(k)(5)
Jonathan M. was born December 19, 1995, and is approaching his eighth birthday. John Carlos M. was born October 18, 1996 and is approaching his seventh birthday. Christian was born December 22, 1998, and will turn five in four months.
III.A.6. PARENT'S EFFORT TO ADJUST HIS CIRCUMSTANCES — § 17a-112(k)(6)
While he was at liberty, Ricardo M. did not make realistic and sustained efforts to conform his conduct to even minimally acceptable parental standards. As found in Parts I.B., II.A. and II.B., he maintained large amounts of heroin in a dresser drawer in his house that would have been easily accessible to young children had they been living there. As there is no evidence from which the court could reasonably conclude that Ricardo M. was dependent upon heroin, or even that the possession of such a large quantity of heroin is consistent with drug dependence, the court is constrained to infer that he was actively engaged in the sale and/or distribution of large quantities of illegal drugs, to the detriment of others in the community and in violation of Connecticut statutes. See State v. Copas, supra, 252 Conn. 338; In re Adalberto S., supra, 27 Conn.App. 53. As the penalty for his criminal conduct, Ricardo M. will spend a total of thirteen years in jail. Giving him additional time would not likely bring his performance, as a parent, within acceptable standards sufficient to make it in the best interests of the children to be reunited with him at such a remote time.
III.A.7. EXTENT TO WHICH PARENT WAS PREVENTED FROM MAINTAINING A RELATIONSHIP WITH THE CHILDREN — § 17a-112(k)(7)
No unreasonable conduct by the child protection agency, foster parents or third parties prevented Ricardo M. from maintaining relationships with the children at issue, nor did the economic circumstances of the parent prevent such relationships, although the limitations and restrictions inherent in the foster care system were in effect. As found in Part II.A., it was Ricardo M.'s own criminal conduct that interfered with the maintenance of CT Page 9091-n a relationship with his sons and Daniel.
III.B. BEST INTERESTS OF THE CHILDREN — § 17a-112(j)(2)
In determining whether it would serve the children's best interests to terminate the respondent father's parental rights. the court has applied the appropriate legal standards to the facts of this case. Under such scrutiny, the clear and convincing evidence establishes that it is not in the best interests of Jonathan, John Carlos or Christian to continue to maintain any legal relationship with Ricardo M. Therefore, based on the clear and convincing evidence presented and adopting the conclusions reached in Part II., the court finds this issue in favor of the petitioner.
"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 . . . Termination of parental rights is a most serious and sensitive judicial action. In re Barbara J., 215 Conn. 31, 44, 574 A.2d 203 (1990)." (Quotation marks and internal citation omitted.) In re Steven N., 57 Conn.App. 629, 632, 749 A.2d 678 (2000).
In determining whether termination of the respondent's parental rights would be in the children's best interests, the court has examined the multiple relevant factors, including their interests in sustained growth, development, well-being, stability and continuity of their environment; their length of stay in foster care; the nature of their relationship with their foster parents and biological parents; and the degree of contact maintained with their biological parents. In re Alexander C., 60 Conn.App. 555, 559, 760 A.2d 532 (2000); In re Shyina B., 58 Conn.App. 159, 167, 752 A.2d 1139 (2000). The court has also considered "the genetic bond shared by a biological parent and his or her child, [which] although not determinative of the issue of the best interest of the child, is certainly a factor to consider." (Citations and quotation marks omitted.) In re Savanna M., 55 Conn.App. 807, 816, 740 A.2d 484 (1999). The court has also balanced the children's intrinsic need for stability and permanency against the benefits of maintaining a connection with their biological father. See Pamela B. v. Ment, 244 Conn. 296, 314, 709 A.2d 1089 (1998) (child's physical and emotional well-being must be weighed against the interest in preserving family integrity).
In reaching this determination, the court has honored the axiomn that "longterm stability is critical to a child's future health and development." In re Eden F., supra, 250 Conn. 709. The court has further adhered to the principle that "[b]ecause of the psychological effects of prolonged termination proceedings on young children, time is of the essence . . ." when resolving issues related to the permanent or temporary care of neglected or uncared for children. In re Alexander V., 25 Conn.App. 741, 748, 596 A.2d 930 (1992); see also In re Juvenile Appeal (84-CD), 189 Conn. 276, 292, 455 A.2d 1313 (1983). The children's attorney, also acting as their statutory GAL, has vigorously argued that termination of Ricardo M.'s rights will serve their best interests. The court is constrained to agree and concludes that the clear and convincing evidence in this case establishes that Jonathan, John Carlos and Christian are entitled to the benefit of ending, without further delay, the long period of uncertainty as to the availability of their biological father as a caretaker.
The GAL has also reported that the children's best interests will be served by terminating the parental rights of Glenda M.
In addition to his failure to achieve rehabilitation or to achieve a benefit from reasonable reunification efforts, as found in Parts II.A. and B., the evidence clearly and convincingly reflects other aspects of Ricardo M's behavior which confirm the conclusion that his parenting style cannot serve the children's best interests. It is clear that Jonathan, John Carlos and Christian love their father and are excited and happy when they meet him during visits at the prison. However, Ricardo M. has made a series of troubling, unsupported promises to the children concerning his ability to purchase a home and to otherwise meet their needs in the future, leading the boys to anticipate his CT Page 9091-o imminent release and return to his custody under idealized circumstances. Moreover, Ricardo M. failed to timely and properly respond to DCF's cautions and directions concerning the harmful effect of his statements. (Testimony of Alicia F.) Such unrealistic representations were clearly detrimental to the children's ability to understand the circumstances in which Ricardo M. had left them as a result of his criminal activity. At the very least, these unnecessary, unrealistic statements could only have hurt the feelings of children who had already been subject to far too much emotional turmoil in their young lives.
In this case, the clear and convincing evidence establishes that the children's interests in sustained growth, development, well-being, stability and continuity of their environment will best be served by allowing them to immediately begin building a lasting, reliable bond with adults upon whom they can depend to meet their needs now and in the future. See In re Alexander C., supra, 60 Conn.App. 559; In re Shyina B., supra, 58 Conn.App. 167. With his half-brother Daniel, Jonathan has already begun to build a lasting attachment with his foster mother, who wishes to afford these children the permanent, loving home that Ricardo M. will never be able to provide due to his long sentence of incarceration. Although John Carlos and young Christian are not now living in an environment that can provide them with lasting care, they, too, should be permitted to be placed with a parent-figure who is willing and available to provide the therapeutic, supportive, nurturing and stable environment which will meet their special emotional and developmental needs.
All three children have been in foster care continuously since late July 2001. Including their stay in DCF custody during the spring of 2000, Jonathan, John Carlos and Christian have been out of Ricardo M.'s care for more than two full years. As their therapist had credibly opined, in order to preserve their emotional health, these children deserve and require a permanent home now, not at some remote date in the future. (Testimony of Ingrid R.) See In re Alexander C., supra, 60 Conn.App. 559; In re Shyina B., 58 Conn.App. 167. Given the lengthy sentence of imprisonment that Ricardo M. must serve, Jonathan will likely have reached his majority when the respondent father is released from prison; John Carlos's majority will be fast approaching, and Christian will be well into his teen years. Under these circumstances, and given the dangerous and illegal activities in which Ricardo M. engaged prior to his incarceration, it is clearly and convincingly evident that the children's need for CT Page 9091-p stability and permanency can only be met by terminating the respondent father's parental rights, not by requiring them to wait the many years that will expire before he is able to even attempt to safely care for them. See Pamela B. v. Ment, supra, 244 Conn. 314; In re Savanna M., supra, 55 Conn.App. 816, 740 A.2d 484 (1999).
Having balanced the children's intrinsic need for stability and permanency against the benefits of maintaining a connection with Ricardo M., the clear and convincing evidence in this case establishes that the children's best interests will be served by terminating his parental rights, they are entitled to the benefit of ending, without further delay, the uncertainty as to whether this respondent will ever be able to serve as their caretaker. Pamela B. v. Ment, supra, 244 Conn. 313-14. Accordingly, with respect to the best interests of the children contemplated by § 17a-112(j)(2), by clear and convincing evidence, and based upon all of the foregoing, including the testimony and evidence presented, the court herein terminates the respondent father's parental rights to Jonathan, John Carlos and Christian.
IV. ORDER OF TERMINATION
WHEREFORE, after due consideration of the children's sense of time, their need for a secure and permanent environment, the relationship Jonathan has with his foster mother, and the totality of circumstances, including but not limited to Ricardo M.'s long period of unavailability due to his sentence of incarceration; having considered all the statutory criteria and having found by clear and convincing evidence that grounds exist for termination of parental rights; and having concluded that the termination of the parental rights at issue will be in the children's best interests, the court issues the following ORDERS:
That the parental rights of Ricardo M. are hereby terminated as to the children Jonathan M., John Carlos M. and Christian M.
That appointment of the Commissioner of the Department of Children and Families as the statutory parent for these three children is hereby deferred, as Glenda M.'s parental rights remain legally intact at this time.
That submission of a permanency plan affecting these children, and application for designation of adoptive families for them, is hereby deferred, as Glenda M.'s parental rights remain legally CT Page 9091-q intact at this time.
BY THE COURT,
N. Rubinow, J.