Opinion
No. H12-CP08-012080-A
February 26, 2009
MEMORANDUM OF DECISION
This is a coterminous neglect and termination of parental rights ("TPR") case.
Practice Book § 35a-3 provides the procedure for the court's consideration of coterminous petitions:
When coterminous petitions are filed, the judicial authority first determines by a fair preponderance of the evidence whether the child or youth is neglected, uncared for or dependent; if so, then the judicial authority determines whether statutory grounds exist to terminate parental rights by clear and convincing evidence; if so, then the judicial authority determines whether termination of parental rights is in the best interests of the child or youth by clear and convincing evidence. If the judicial authority determines that termination grounds do not exist or termination of parental rights is not in the best interests of the child or youth, then the judicial authority may consider by a fair preponderance of the evidence any of the dispositional alternatives available under the neglect, uncared for or dependent petition.
General Statutes § 17a-112(l) provides:
Any petition brought by the Commissioner of Children and Families to the Superior Court, pursuant to subsection (a) of section 46b-129, may be accompanied by or, upon motion by the petitioner, consolidated with a petition for termination of parental rights filed in accordance with this section with respect to such child. Notice of the hearing on such petitions shall be given in accordance with sections 45a-716 and 45a-717. The Superior Court, after hearing, in accordance with the provisions of subsection (i) or (j) of this section, may, in lieu of granting the petition filed pursuant to section 46b-129, grant the petition or termination of parental rights as provided in section 45a-717.
On August 15, 2008, the neglect and TPR petitions were filed in the Superior Court for Juvenile Matters ("SCJM") at Hartford, and the case was subsequently transferred to the Child Protection Session at Middletown for trial. Such trial occurred on Friday, February 20, 2008.
In the neglect petition the commissioner of the department of children and families ("DCF") alleged that Kalvyn M. ("Kalvyn") was being denied proper care and attention, physically, educationally, emotionally or morally ("denied proper care"), and that he was being permitted to live under conditions, circumstances or associations injurious to his well-being ("conditions injurious"). As jurisdictional facts DCF alleged that:
A. the mother tested positive for cocaine and opiates at the delivery of Kalvyn;
B. Kalvyn tested positive for cocaine at birth;
C. the mother had unaddressed substance abuse and mental health issues; and
D. the father of the child was unknown.
In the termination of parental rights petition DCF alleged that
A. in violation of General Statutes § 17a-112(j)(3)(A) the father of Kalvyn abandoned him in the sense that he failed to maintain a reasonable degree of interest, concern or responsibility as to his welfare;
B. in violation of General Statutes § 17a-112(j)(3)(D) there was no ongoing parent-child relationship between such father of Kalvyn and him, 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 re-establishment of such parent-child relationship would be detrimental to the best interest of each such child; and
C. with respect to Kalvyn, a child under the age of seven years who is alleged to be neglected or uncared for, the mother was unable or unwilling to benefit from reunification efforts and that pursuant to General Statutes § 17a-112(j)(3)(E), 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 Kalvyn, the mother could assume a responsible position in the life of Kalvyn and the mother's parental rights of another child were previously terminated pursuant to a petition filed by DCF.
Also on August 15, 2008, DCF filed a five-page single-spaced document entitled "summary of facts to substantiate petition[] of neglect and termination of parental rights." See Practice Book § 33a-1. Such allegations are incorporated in the petition by reference. Id.
FACTS:
This court finds the following facts by clear and convincing evidence:
1. On March 15, 2002, the SCJM granted DCF an ex parte order of temporary custody ("OTC") for the mother's oldest child Antoinette J. (Antoinette"), Kelvyn's half-sibling.
2. On March 25, 2002, the SCJM sustained such OTC and DCF placed Antoinette with the paternal aunt.
3. On June 17, 2002, Antoinette was adjudicated neglected and the SCJM ordered her care, custody and guardianship transferred to such paternal aunt subject to a period of protective supervision for three months.
4. On June 13, 2005, the SCJM granted DCF an ex parte OTC for mother's older child Briana W. ("Brianna"), Kelvyn's half-sibling.
5. On June 15, 2005, the SCJM sustained such OTC by agreement.
6. On February 2, 2006, Briana was adjudicated neglected and committed to DCF until further order of the court.
7. On October 11, 2006, the mother consented to the TPR petition DCF had filed with respect to Briana.
8. On February 13, 2007, the court terminated the parental rights of the father John Doe in regards to Briana Wright.
9. Kelvyn was born in early August 2008.
10. On August 15, 2008, the SCJM granted DCF an ex parte OTC for Kelvyn.
11. On August 15, 2008, DCF filed coterminous petitions for neglect pursuant to General Statutes § 46b-120(9)(B) and (C) and TPR pursuant to General Statutes § 17a-112(j)(3)(A), (D) and (E) concerning Kalvyn.
12. On August 21, 2008, the SCJM sustained such OTC by agreement.
13. Also on August 21, 2008, the plea hearing occurred. Abode service was confirmed for the mother for the OTC and for the coterminous neglect and TPR petitions.
14. On August 21, 2008, the court granted DCF's motion to amend its petitions and other documents to change Kalvyn's last name to M.
15. On September 11, 2008, the SCJM confirmed service on John Doe with respect to the neglect and TPR petitions, and John Doe was defaulted for failure to appear.
16. On January 28, 2009, the SCJM confirmed service on John Doe with respect to the hearing on the coterminous neglect and TPR petitions, and John Doe was defaulted for failure to appear.
17. The coterminous neglect and TPR petitions were heard at the Child Protection Session of the Superior Court on February 20, 2009. On such day of the hearing the attorney for the mother of Kelvyn was present, but the mother was not present in court. The father of Kelvyn, who had not previously appeared and who was not represented by counsel, did not appear at the TPR hearing pursuant to the published notices of such hearing. The attorney for the child, an assistant attorney general representing DCF and a representative of DCF were present. The mother was defaulted for failure to appear for trial.
Although these matters may sometimes be referred to as trials, in the Practice Book they are defined as hearings. See Practice Book § 26-1:
"Hearing" means an activity of the court on the record in the presence of a judicial authority and shall include (1) "Adjudicatory hearing": A court hearing to determine the validity of the facts alleged in a petition or information to establish thereby the judicial authority's jurisdiction to decide the matter which is the subject of the petition or information . . . (3) "Dispositive hearing": The judicial authority's jurisdiction to adjudicate the matter which is the subject of the petition or information having been established, a court hearing in which the judicial authority, after considering the social study or predispositional study and the total circumstances of the child or youth, orders whatever action is in the best interests of the child, youth or family and, where applicable, the community. In the discretion of the judicial authority, evidence concerning adjudication and disposition may be presented in a single hearing . . .
Practice Book § 32a-2(a) provides that all such hearings are essentially civil proceedings but that they ". . . shall at all times be as informal as the requirements of due process and fairness permit . . ."
All hearings are essentially civil proceedings except where otherwise provided by statute. Testimony may be given in narrative form and the proceedings shall at all times be as informal as the requirements of due process and fairness permit.
The "usual legal effect of the default judgment [is] that liability is admitted and conclusively established on all adequately pleaded causes of action . . ." Richey v. Stafford, 110 Conn.App. 209, 218 (2008).
18. In the coterminous hearing DCF presented one witness, the current worker, and seven full exhibits.
19. DCF had been involved with the family since 2002. The problems existing when DCF became involved included the mother's unaddressed substance abuse and mental health issues, domestic violence and inadequate supervision of her child. At the time of Kelvyn's birth in August 2008, the mother continued to suffer from substance abuse and mental health problems.
20. At the time of Kelvyn's birth the mother was thirty years old. The mother reported to DCF that during her childhood, her mother, Kelvyn's maternal grandmother, was a crack addict who also smoked marijuana. She also reported that between the ages of eleven and thirteen she was sexually assaulted on several occasions by three of her brothers. She told her mother about the assaults but her mother was unable to protect her. The mother became depressed, started having mood swings and began to hear voices. She stated to DCF that at age fifteen she started to abuse illegal drugs. She said that she learned from her mother how to smoke crack. In the year prior to Kelvyn's birth the mother started to use heroin. The mother admitted that one day prior to Kelvyn's birth the mother used cocaine and heroin.
21. The mother also stated to DCF that she stopped attending school in the ninth grade. She reported to DCF that although she had several jobs in the past, she had not worked since 2007. The mother currently has diabetes and has to take medication several times a day for such condition.
22. The mother became pregnant with Kelvyn as a result of a sexual assault in December 2007.
23. The mother is a convicted felon. On June 5, 2007, she was sentenced to two years in jail for the offenses of carrying a dangerous weapon, assault in the second degree and assault in the third degree. The offenses occurred on three separate dates in 1996 and 1997.
24. At birth Kelvyn's urine and meconium tested positive for cocaine. He also was born with respiratory distress because of exposure to Group B-Strep during his delivery.
25. The DCF neglect allegations are based on the doctrine of predictive neglect set forth in In re Michael D., 58 Conn.App. 119, 124, 752 A.2d 1135 (2000), cert. denied, 254 Conn. 911, 759 A.2d 505 (2002);
"Our statutes clearly and explicitly recognize the state's authority to act before harm occurs to protect children whose health and welfare may be adversely affected and not just children whose welfare has been affected." (Emphasis added.) In re Michael D., 58 Conn.App. 119, 124, 752 A.2d 1135 (2000), cert. denied, 254 Conn. 911, 759 A.2d 505 (2002); see also In re T.K., 105 Conn.App. 502, 513, 939 A.2d 9, cert. denied, 286 Conn. 914, 945 A.2d 976 (2008).
In re Francisco R., 111 Conn.App. 529, 531 n. 1 (2008).
26. On October 11, 2006, the mother's parental rights to Brianna were terminated because the mother was unable to overcome her longstanding substance abuse and mental health issues and to rehabilitate herself so that she could care for Brianna.
27. After Kelvyn's birth DCF referred the mother to Wheeler Clinic for a substance abuse and mental health evaluation. The mother missed her August 21, 2008, scheduled appointment. Another appointment was scheduled for the mother on September 25, 2008, but on September 24, 2008, the mother telephoned DCF and claimed that she had obtained employment so that she would not be able to keep such appointment.
28. The mother did attempt to secure an inpatient bed at Morris Foundation, but she was not accepted into the program.
29. After Kelvyn's birth the mother admitted to DCF that she continued to use heroin.
30. On October 6, 2008, the mother was evicted from her apartment because of her non-payment of rent. The mother claimed that she moved to another apartment but the current DCF worker was unable to gain access to such apartment. The building is boarded up and it seems to be unoccupied.
31. On October 11, 2008, the mother missed another scheduled substance abuse evaluation at ARDC.
32. On November 14, 2008, Kelvyn was placed in a relative foster home. On several occasions the mother told DCF that she agreed with such placement.
33. On December 8, 2008, the mother missed another scheduled substance abuse evaluation at Wheeler Clinic.
34. On January 26, 2009, DCF learned that the mother was not employed at the last place of employment known to DCF.
35. The mother's last visit to Kelvyn occurred on November 25, 2008, or December 25, 2008 at the home of the relative foster parents (the worker testified that this visit occurred on November 25, 2008, but in exhibit 2 the date of the visit is set forth as December 25, 2008). The mother arrived at such visit with a person who she identified to her relatives as Kelvyn's father. The mother's whereabouts are not known to DCF so DCF has been unable to contact the mother to confirm her claim and to identify such putative father. The mother's alleged statements on the date of such visit are in conflict with her statements to DCF that she was sexually assaulted and that she did not know the identity of such perpetrator.
36. Additional facts are set forth infra. Unless otherwise specified, all facts set forth in this decision are found by clear and convincing evidence.
LAW APPLICABLE TO TERMINATION OF PARENTAL RIGHTS CASES:
The law applicable to this case is generally set forth in such recent cases as In re Davonta V., 285 Conn. 483 (2008); in In re Joseph L., 105 Conn.App. 515, 939 A.2d 16 (2008); in In re Jessica M., 217 Conn. 459, 467-70, 586 A.2d 597 (1991); and in In re Marcus S., 2008 Ct.Sup. 3329, No. H12-CP07-012714-B, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Bear, J., February 29, 2008).
GENERAL STATUTES § 17A-112(k) FINDINGS:
The court has made findings earlier in this decision, some of which relate to the seven statutory factors applicable to the father. See pages 1-9, supra. In addition to those findings, the court makes the following findings applicable to the mother, the father and Kelvyn:
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 father of Kelvyn:
Such father has made it impossible for DCF to determine whether to offer services to him, and, if so, what services should have been offered. He has not been identified to DCF by the mother; he has not responded to published notices; and he has not had contact with DCF.
CT Page 4310
B. The mother of Kelvyn:
DCF has offered the mother numerous services both before and after Kelvyn's birth. The mother has been unable to attend, participate in and complete the offered services. She also has been unable to overcome the trauma she suffered as a child and her chronic, continuing substance abuse and mental health problems. For a while the mother did participate in the supervised visitation offered by DCF but she has not visited Kelvyn since November or December 25, 2008.C. Kelvyn has been offered and has received the following services from or facilitated by DCF, inter alia: medical services; reunification services through visitation with the mother; supervised visitation; transportation; foster care services; and administrative and case management services.
2. Whether DCF 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 mother with such children. The unidentified father was not known to be an appropriate candidate for reunification.
Given Kelvyn's father's lack of interest in and effort to become involved with him, DCF was unable to and was not required to provide services to such father.
The reasonable efforts made and facilitated by DCF with respect to services for Kelvyn and the mother were timely and adequate to address the issues that led to DCF involvement with each of them and to address the issues that continued or arose after such DCF involvement.
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).
The father was unidentified by the mother and was unavailable to perform any specific steps, and was not known to be a serious or likely candidate for reunification with Kelvyn. On September 11, 2008, the unidentified father was defaulted for failure to appear in connection with the scheduled coterminous advisement and plea. On January 28, 2009, such father was defaulted for failure to appear at the coterminous neglect and TPR hearing. Under such circumstances, pursuant to General Statutes §§ 17a-111b and 17a-112(j) the court finds that court ordered specific steps would not have been helpful for such father. Such father was unable, unwilling and not ready to benefit from reunification efforts.
General Statutes § 17a-112(j) provides in relevant part:
The Superior Court . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that (1) the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent in accordance with subsection (a) of section 17a-111b, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts, except that such finding is not required if the court has determined at a hearing pursuant to section 17a-111b, or determines at trial on the petition, that such efforts are not required . . .
On August 15, 2008, the court ordered preliminary specific steps to be performed by the mother. (Exhibit 3.) As set forth above, the mother was generally unable or unwilling to comply with such specific steps concerning her substance abuse and mental health problems. She was evicted from her apartment, ceased to have legal employment and became whereabouts unknown to DCF.
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.
Kelvyn, who has not been in the mother's care, does not have a positive bond with her. The unidentified father has not had any contact with his child. Kelvyn would not recognize him. Kelvyn has a positive bond with the foster family. They are meeting his needs.
5. The age of each child:
Kelvyn is almost seven 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.
As set forth throughout this memorandum of decision and in the evidence, the biological father has not been identified to DCF although on December 25, 2008, the mother claimed to the foster parents that the person with her for her visit with Kelvyn was his biological father.
As set forth throughout this memorandum of decision and in the evidence, the mother has not been able to adjust her circumstances, conduct or conditions to enable her to make it in the best interest of Kelvyn to be placed with her in the foreseeable future. Unfortunately, the mother continues to have chronic untreated substance abuse and mental health problems and she has not able to improve her parenting skills to a level sufficient to provide safe and secure care for Kelvyn.
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 father has been prevented from maintaining a relationship with Kelvyn. There was no evidence presented that the mother has been prevented from maintaining a relationship with Kelvyn for any reasons other than her personal choices, problems or circumstances.
Such mother did not provide specific information concerning her current or past economic circumstances.
Given the history of the mother's parenting and her circumstances at the time of Kelvyn's birth, DCF could reasonably have concluded and has proved by a fair preponderance of the evidence that Kelvyn was neglected on August 15, 2008, when the neglect petition was filed with the court.
Given the history of the mother's parenting, and her circumstances at the time of Kelvyn's birth, DCF could reasonably have concluded and has proved by a preponderance of the evidence that on August 15, 2008, the date of the neglect petition, Kelvyn was neglected on the basis of each ground alleged in the neglect petition, e.g., denied proper care and conditions injurious to his wellbeing. In re T.K., 105 Conn.App. 502, 939 A.2d 9 (2008); In re Michael D., 58 Conn.App. 119, 123-25, 752 A.2d 1135, cert. denied, 254 Conn. 911, 759 A.2d 505 (2000).
Given the current circumstances of the mother, the disposition that will foster Kelvyn's health and safety, his interest in sustained growth, development, well-being, in the continuity and stability of his environment, and his general best interest, is commitment to the care, custody and guardianship of DCF. Kelvyn thus is committed to the care, custody and guardianship of DCF. It is not in his best interest presently to be returned to the care, custody or guardianship of either biological parent.
WITH RESPECT TO THE FATHER OF KELVYN, DCF HAS PROVED, BY CLEAR AND CONVINCING EVIDENCE, THE GROUND A AND D ALLEGATIONS OF ITS TERMINATION OF PARENTAL RIGHTS PETITION AND WITH RESPECT TO THE MOTHER DCF HAS PROVED, BY CLEAR AND CONVINCING EVIDENCE, THE GROUND E ALLEGATION OF SUCH PETITION.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) there is no other action pending in any other court affecting custody of Kelvyn known to this court. Neither biological parent has claimed to be affiliated in his or her lineage with any Native American tribe;
(3) on February 26, 2009, see above, Kelvyn was adjudicated neglected, and he was committed to the care, custody and guardianship of DCF;
(4) prior to and after filing its termination petition, DCF made reasonable efforts to reunify the mother with Kelvyn through offers of and provision of services, but the mother neither demonstrated interest in or was able to make herself available for the provision of reunification services other than visitation;
(5) on September 11, 2008, the Superior Court for Juvenile Matters entered a default against Kelvyn's biological father after such father failed to appear as ordered by the court at the advisement and plea hearing, and on January 29, 2009, the Superior Court for Juvenile Matters, Child Protection Session (Bear, J.) entered a default against such father after such father failed to appear as ordered by the court for the coterminous neglect and TPR hearing;
(6) Kelvyn has been abandoned by his biological father in the sense that such father has failed to maintain a reasonable degree of interest, concern or responsibility as to his welfare;
General Statutes § 17a-112(j)(3) sets forth grounds A, D and B as follows: . . . (A) the child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child . . . (D) 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; (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 Families1 1Only one of the grounds for adjudication alleged by DCF need be established as a basis for termination of parental rights:
"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 . . ." In re Coby C., 107 Conn.App. 395, 401 (2008).
(7) there is no ongoing parent-child relationship between Kelvyn's biological father and him, and to allow further time for the establishment of such parent-child relationship would be detrimental to the best interest of Kelvyn. Ongoing parent-child relationship 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 (8) the mother who is the parent of a child under the age of seven years (Kelvyn) who was 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 (Brianna) were previously terminated pursuant to a petition filed by DCF.
THE BEST INTEREST OF KELVYN: CT Page 4314
The court has considered the best interest of Kelvyn. The court has considered whether it is in the best interest of Kelvyn to be returned to the mother or to initiate contact with the father, who has not been identified to DCF, including whether the mother or such father reasonably could be expected and relied upon to provide the safe, secure, nurturing, stable and permanent environment idealized in the statutes and case law, and the court has considered Kelvyn'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 (2007). Unfortunately for Kelvyn, the mother has been and currently is unable to provide him such safe, secure, nurturing, stable and permanent environment, and the father is not known to DCF. On the other hand, in the care of the foster parents, Kelvyn is receiving love, nurturing and appropriate care. The court finds, by clear and convincing evidence, that it is in the best interest of Kelvyn and that it is necessary for his well-being, growth, development, safety, security, stability, continuity, consistency and permanency, that the rights of the biological 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) DCF proved by clear and convincing evidence that the mother is the parent of a child under the age of seven years (Kelvyn) who was 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 the child, she could assume a responsible position Kelvyn's life and her parental rights to another child (Brianna) were previously terminated pursuant to a petition filed by DCF;
(b) DCF proved by clear and convincing evidence that Kelvyn (a) has been abandoned by his father in the sense that such biological father has failed to maintain a reasonable degree of interest, concern or responsibility as to his welfare; and (b) there is no ongoing parent-child relationship between such father and Kelvyn, 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 of such parent-child relationship would be detrimental to the best interest of Kelvyn; and
(c) it is in the best interest of Kelvyn to terminate the parental rights of the biological mother and the biological father.
Accordingly, it is hereby ORDERED that the parental rights of the mother and the father to Kelvyn are hereby terminated.
The commissioner of the department of children and families is appointed as the statutory parent of Kelvyn. The initial status report concerning Kelvyn 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, including those set forth in General Statutes § 17a-112(o).
Judgment shall enter accordingly.