Opinion
Nos. F02-CP03-002846-A, F02-CP03-002847-A, F02-CP03-002848-A
September 14, 2006
AMENDED MEMORANDUM OF DECISION
These are termination of parental rights ("TPR") matters. The trial took place on June 21 and 27, 2006, and on July 27, 2006. The undisputed chronology is as follows:
1. On January 17, 2002, the Commissioner of the Department of Children and Families ("DCF") placed a ninety-six hour hold on Keymothie H. ("Keymothie"), Akeem H. ("Akeem") and Desiree H. ("Desiree"). (Exhibit 11, 3.)
2. On January 17, 2002, each of such children was placed into DCF licensed foster care. Id.
3. On January 20, 2002, DCF filed motions for an ex parte order of temporary custody of each of the three children, and such orders were entered. Id.
4. On March 25, 2002, each of the children was adjudicated neglected, and each of such children was thereafter reunified with the mother pursuant to an order of six months of protective supervision. Id. On September 25, 2002, such period of protective supervision expired without extension.
5. On November 5, 2003, DCF placed another ninety-six hour hold on each of the three children. Id.
6. On November 7, 2003, DCF moved for an ex parte order of temporary custody of each of the three children, and such orders were entered. On November 12, 2003, each of the orders was sustained by the court. Id.
7. On January 14, 2004, each of the children was adjudicated uncared for because of specialized needs. Each child was committed to the care, custody and guardianship of DCF until further order of the court. Id.
8. On February 1, 2005, the court (Brenneman, J.) found upon clear and convincing evidence that it was not appropriate to continue to make reasonable efforts to reunify either Keymothie or Desiree with their respective fathers, and the court ordered that on or before February 28, 2005, DCF file petitions for termination of parental rights or a new permanency plan. (Exhibits 15 and 17, 1, 2.)
It is also undisputed that the mother does not know the identity of Akeem's biological father, (exhibit 11, 12) and that on June 1, 2006, the mother consented to the termination of her parental rights as to each child.
THE TERMINATION OF PARENTAL RIGHTS PETITIONS:
On March 2, 2005, and on April 12, 2005, DCF filed petitions for the termination of the rights of the father of Keymothie ("Keymothie's father"), and on April 12, 2005, DCF filed petitions for the termination of the rights of the father of Desiree ("Desiree's father") and Akeem ("Akeem's father" or "John Doe").
1. Keymothie:
With respect to Keymothie, DCF alleged that it had made reasonable efforts to reunify him with his father, and that further efforts were determined not to be required as the court had determined that such efforts were no longer appropriate. DCF also alleged that Keymothie's father was unable or unwilling to benefit from reunification efforts.
As grounds for such termination, DCF alleged that (1) the father had abandoned Keymothie in the sense that he had failed to maintain a reasonable degree of interest, concern, or responsibility as to his welfare ("Ground A," "abandonment"); (2) Keymothie had been found in a prior proceeding to have been neglected or uncared for and his father had failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering Keymothie's age and needs, such father could assume a responsible position in his life ("Ground B(i), "failure to rehabilitate"); and (3) there was no ongoing parent-child relationship between Keymothie and his father that ordinarily develops as a result of a parent having met on a continuing, day-to-day basis the physical, emotional, moral and educational needs of the child, and to allow further time for the establishment of such relationship would be detrimental to the best interests of the child ("Ground D," "no parent-child relationship").
2. Desiree:
With respect to Desiree, DCF alleged that it had made reasonable efforts to reunify her with her father, and that further efforts were determined not to be required as the court had determined that such efforts were no longer appropriate. DCF also alleged that Desiree's father was unable or unwilling to benefit from reunification efforts.
As grounds for such termination, DCF alleged that (1) the father had abandoned Desiree in the sense that he had failed to maintain a reasonable degree of interest, concern, or responsibility as to her welfare ("Ground A," "abandonment"); (2) Desiree had been found in a prior proceeding to have been neglected or uncared for and her father had failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering Desiree's age and needs, such father could assume a responsible position in her life ("Ground B(i)"); and (3) there was no ongoing parent-child relationship between Desiree and her father that ordinarily develops as a result of a parent having met on a continuing, day-to-day basis the physical, emotional, moral and educational needs of the child, and to allow further time for the establishment of such relationship would be detrimental to the best interests of the child ("Ground D").
3. Akeem:
With respect to Akeem, DCF alleged that it had made reasonable efforts to reunify him with his father, and that further efforts were determined not to be required as the court had determined that such efforts were no longer appropriate. DCF also alleged that Akeem's father was unable or unwilling to benefit from reunification efforts.
As grounds for such termination, DCF alleged that (1) the father had abandoned Akeem in the sense that he had failed to maintain a reasonable degree of interest, concern, or responsibility as to his welfare ("Ground A," "abandonment"); (2) Akeem had been found in a prior proceeding to have been neglected or uncared for and his father had failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering Akeem's age and needs, such father could assume a responsible position in his life ("Ground B(i), failure to rehabilitate"); and (3) there was no ongoing parent-child relationship between Akeem and his father that ordinarily develops as a result of a parent having met on a continuing, day-to-day basis the physical, emotional, moral and educational needs of the child, and to allow further time for the establishment of such relationship would be detrimental to the best interests of the child ("Ground D," "no parent-child relationship").
On or about May 11, 2005, service by publication giving notice to Akeem's father of the filing of the TPR petition was found by the court, and he was defaulted for failure to appear for the advisement of his rights and his plea to the TPR petition.
4. Allegations in the summary of adjudicatory facts:
DCF alleged that on February 1, 2005, the court determined on clear and convincing evidence that it was not appropriate to continue to make reasonable efforts to reunify the children with their fathers. (Summary, 4.)
With respect to Keymothie's father, DCF alleged, inter alia, that such father "is a convicted felon and has never been a resource for his child, openly stating that he does not want to be a resource for his son. [Such father] stated that Keymothie deserved to be placed into DCF foster care, as he did not understand or appreciate his biological family. In June 2003, [such father] physically abused Keymothie with a belt resulting in a DCF substantiation. [Such father] continuously minimized the maltreatment of his child, and often blames Keymothie for his own predicament. [Such father] has not contacted the Department to inquire about his child's well-being and has never provided for the child financially or emotionally." Id., 5.
With respect to the alleged abandonment of Keymothie by his father, DCF alleged that such father:
(1) failed to contact DCF about such child for over three years;
(2) has not sent any letters, cards, gifts or other remembrances since DCF became involved on January 17, 2002;
(3) stated that he did not want to be a resource for Keymothie;
(4) stated that he would not identify any viable resources for his child, because Keymothie deserved to be placed into DCF foster care;
(5) physically abused Keymothie with a belt, resulting in a DCF substantiation;
(6) is a convicted felon;
(7) has never provided financially or emotionally for Keymothie; and
(8) Keymothie had "minimal positive memories or feelings for his father . . . [and] does not ask for or acknowledge his father."
Id., 6.
Concerning Ground B(i), failure to rehabilitate, DCF additionally alleged that Keymothie's father did not contact DCF "to follow through reunification efforts." Id., 9.
Concerning Ground D, no parent-child relationship, DCF additionally alleged that:
(1) Keymothie's father had "not had any meaningful relationship with his child in over three years . . .";
(2) Keymothie did "not have a positive relationship" with such father;
(3) Keymothie did "not ask for his biological father . . ."; and
(4) to "allow further time for the establishment or re-establishment of the parent/child relationship between the [father] and said child would be detrimental to the child's best interest."
Id., 10.
With respect to Desiree's father, DCF alleged, inter alia, that "[a]s a result of his failure to comply with drug treatment, [Desiree's father] has been incarcerated since 12/9/04, preventing contact with his daughter and he has not contacted DCF to inquire about the child since June 2004. [Desiree's father] has not presented any viable resources to care for his daughter." Id. With respect to the alleged abandonment of Desiree by her father, DCF alleged that such father:
(1) failed to contact DCF concerning Desiree "for over three years";
(2) ". . . has never sent any letters, cards, gifts or other remembrances for his daughter . . .";
(3) has never identified a viable resource for Desiree;
(4) ". . . is a convicted felon . . . incarcerated since 12/9/04 . . ."; and
(5) Desiree "does not have any positive memories or feelings for her father . . ." Id., 7.
Concerning Ground B(i), failure to rehabilitate, DCF additionally alleged that Desiree's father was "a convicted felon with no intention of being a resource for Desiree. In addition, [the father] has not presented the Department with a viable resource to care for his child . . ." Id., 10.
Concerning Ground D, no parent-child relationship; DCF additionally alleged that to "allow further time for the establishment or re-establishment of the parent/child relationship between the father and said child would be detrimental to the child's best interest." Id., 11.
Similar allegations were made by DCF concerning Akeem's father.
THE TRIAL:
CT Page 16861
The DCF permanency worker:
The DCF permanency worker testified that during 2002 DCF had no contact from either father. Each was non-custodial at the time of each removal of the children. Such worker had prepared the social study (exhibit 11) filed on April 12, 2005, that had been submitted in connection with the termination of parental rights petition. The worker was available for cross-examination and was in fact cross-examined concerning matters set forth in such social study.The worker reported concerning an October 5, 2004, telephone contact he initiated with Keymothie's father. (Exhibit 11, 6.) The father stated that he maintained the address utilized for him by DCF. He further stated that he did not want to be a resource for Keymothie. Id. He asserted that Keymothie was a liar, that he deserved to be placed in DCF care, and that he hoped after that occurred that Keymothie would thereafter be more appreciative of his relatives. Id. In addition to his mother, he believed that there were additional paternal relatives who would be able to care for Keymothie, but that he was not going to volunteer their names. Id. The father declined the worker's offer of visitation with Keymothie. Id. The worker wrote: "[The father] has made no efforts to contact the Department to inquire about the well-being of his child, and he has no intention in developing a parent/child relationship." Id. The father had not contacted DCF between October 5, 2004 and April 12, 2005. Id., 12. As of April 12, 2005, Keymothie had not asked for or sought to see his father. Id., 21. According to the worker, as of April 12, 2005, no attachment existed between Keymothie and his father. Id. "[The father] has not demonstrated an effort to adjust his situation to allow his child to be returned to his care." Id., 22.
On October 21, 2003, and thereafter, the mother stated that she was unaware of the identity of Akeem's father. Id., 6, 12. No person has identified himself to DCF as Akeem's father. Id.
The worker reported in such study that, on June 4, 2004, Desiree's father contacted him to request a visit with Desiree. Id., 7. On June 18, 2004, the worker brought Desiree to a correctional facility for a visit. Id. "Prior to June 2004, [the father] had made no efforts to contact the Department or his child to develop a parent/child relationship." Id.
The worker wrote that on August 29, 2004, Desiree's father was released from incarceration. Id. He returned to the mother and they contemplated marriage "in the near future." Id. On August 29, 2004, the father met with the worker and requested visitation. Id. A supervised visit was scheduled on September 22, 2004, but the father did not appear for the visit nor did he contact the worker to postpone or to reschedule such visit. Id. On December 9, 2004, the father was arrested for the offense of second-degree failure to appear, and on April 12, 2005, he was incarcerated and awaiting sentencing. Id. Because he failed to complete substance abuse treatment, his probation was violated. Id., 22. As of April 12, 2005, Desiree had not asked for or sought to see her father. Id., 21. According to the worker, as of April 12, 2005, no attachment existed between Desiree and her father. Id.
1. Keymothie:
The worker testified that Keymothie's paternal grandmother came forward as a resource. She became a licensed foster parent. Keymothie did well, and he loved his grandmother. However, from December 2003, through June 2004, DCF had concerns about how Keymothie was being treated. Keymothie eventually disclosed that he was being hit by the paternal grandmother and that he was fearful about being in her home. The paternal grandmother had "weaned" Keymothie off of his prescribed medicines without consultation with his doctor. The worker believed that the paternal grandmother's foster care license was revoked.
The worker eventually met with Keymothie's father. The worker stated that such father believed that his son was a liar concerning any alleged physical abuse by the paternal grandmother. Such father told the worker that he had no intention of being a resource for Keymothie, and that Keymothie deserved to be in foster care until he learned to appreciate his family.
The worker described a July 2003, supervised visit between Keymothie and his father. Prior to the visit Keymothie had told school personnel that his father had hit him with a belt. The worker stated that after that disclosure the paternal grandmother had agreed to allow the father only supervised visitation. During such visit, there was only a minimal amount of conversation and interaction between Keymothie and his father. Both sat on opposite sides of the room. The worker described the atmosphere as "cold" and "distant." There was no hugging, engagement or reassurance by the father to Keymothie. However, Keymothie clearly identified such father as his biological father.
The father maintained his anger against Keymothie because of his claims that he was physically abused by the paternal grandmother. The worker said that the father made it clear that he had no intention of being a resource for Keymothie. The worker thought that there may have been family resources, but none came forward, and such father did not identify any such resources.
According to the worker, Keymothie's father has not written to him, nor has he sent gifts to Keymothie. Such father has not financially supported Keymothie. Also, such father did not inquire about what was expected of him prior to reunification. Such father was "whereabouts unknown" for periods of time. At the TPR advisement hearing in March 2005, the worker met Keymothie's father for the first time.
At trial, such father was seeking custody of Keymothie, but he had not provided the worker with a viable plan for transfer of custody to him. The worker stated that Keymothie's father never told him that he was, or wished to be considered as, a long-term resource for Keymothie. He solely relied on his mother, the paternal grandmother, as a resource.
At trial, the worker had no knowledge of where such father was actually residing. The worker was never invited to any location claimed by such father as his home. For much of the time he was the worker assigned to the family, such father was "whereabouts unknown." Although he may have had mailing address, letters sent to that address were returned.
The worker said that the paternal grandmother acted for such father. She scheduled his visitation with Keymothie and took other steps for such father. As set forth below, it was the paternal grandmother, instead of such father, who testified at trial.
The worker described Keymothie's approach to his foster mother as "compassionate and loving." Keymothie looks for acceptance and reassurance, and is continuously seeking hugs and attention. He yearns for a positive personal relationship.
2. Desiree:
In June 2004, Desiree's father had an initial visit with her at a correctional facility where he was incarcerated. The worker stated that such father had called him and requested a visit. Desiree was three years old. The worker said that during such visit the father was "appropriate." The worker stated that Desiree was unfamiliar with her father. Initially, she was uncomfortable, shy, quiet and withdrawn. Such father talked with her, tried to engage her, read books to her, hugged her and reassured her that he loved her.
In August 2004, such father and the mother met with the worker. Another visit was arranged at a DCF office. The worker said that the father did not attend the visitation. Until after the TPR petition was filed, the worker stated that such father did not again contact the worker. The worker explained relative placements to Desiree's father. Such father suggested his mother and a sister, but each told him that she could not be a resource.
Other visits were arranged. They were supervised by a co-worker. Desiree was described as reluctant to do so, but she did attend the visits. According to the worker, there were five or six visits between Desiree and her father in thirty-six months.
On December 9, 2004, Desiree's father was arrested and incarcerated. Thereafter, he was not available for services from DCF.
After the TPR petition was filed, and within the twelve months prior to June 21, 2006, the worker said that Desiree's father has sent letters to be read to Desiree. The worker has done that. He said that Desiree has been generally unresponsive to the letters.
The worker stated that parents, including Desiree's father, are generally not allowed to make telephone calls to a foster home to speak with a child.
The worker said that Desiree's father was seeking custody of Desiree, but he had no plan to effectuate transfer of custody to him. On and before June 21, 2006, such father was incarcerated.
Such father has not financially supported Desiree. He has sent cards to her for her birthday and otherwise.
Because of his chronic drug use, his relapses and his incarcerations, DCF did not consider Desiree's father as a viable resource for Desiree. The worker said that such father initially did not present himself as a resource until August 2004, "when he still maintained his criminal behavior." The father suggested his mother and his sister as resources, but the worker stated that each telephoned him to say that each could not be a long-term resource.
The worker stated that he had no knowledge of such father's efforts while incarcerated to obtain a GED, Tier 1 or 2 drug counseling, anger management therapy, and parenting courses.
Corrections Officer:
A corrections officer testified about statements that she said were made by Desiree's father on November 1, 2004. She stated that such father said to her that he could "not take this . . . I go to court at the end of this month . . . I'm going to shoot [the worker] and others . . ." She described the father as having his fists balled up and as being upset. He had come from the mental health unit at the facility and was returning to the housing unit. The next morning she reported such father's statements to her supervisor.
The corrections officer stated that she took such father's statements seriously. The father's statements made her feel uncomfortable, especially since she thought that the worker was nice to bring Desiree to the facility to visit with the father.
The Department of Corrections Counselor:
The department of corrections counselor for Desiree's father testified that since 2001 such father had eight admissions into the correctional system and seven discharges. During his most recent incarceration he has received fourteen disciplinary tickets. According to the counselor, Desiree's father had more than five class A ("flagrant disobedience") tickets, which remain active for four months, and he was ordered into segregation nine times, with two times suspended. As of the date of trial, such father had three outstanding class B tickets that, for early release purposes, remain outstanding for sixty or ninety days after they are put into the computer system. In such father's case, such three class B tickets are to remain outstanding for sixty days. If such father does not receive any more tickets, the issuance of which are upheld, beginning in August 2006, such father may be eligible for release to a halfway house.
Before his release from the department of corrections, the father may need to complete a six-month drug treatment program and a three- or four-month stay at a halfway house. The counselor was not aware of any drug program where Desiree could stay with her father. If such father is placed in such a drug program, he will not have an opportunity until October 2007, to interact with any other people other than those from the department of correction and his parole officer. Such father's first opportunity for a drug program may occur in or after March 2007, depending on when a slot becomes available.
If such father is released before parole to a halfway house, he may enter a drug program supervised by the department of corrections before his parole. If he violates any rules before the completion of such programs, the department can affect an immediate revocation of such father's stay at the halfway house or the drug program, and it could return him to a facility to serve the remainder of his full thirty-month sentence. Such maximum sentence ends on October 26, 2007, approximately three weeks before Desiree's sixth birthday.
Desiree's Father:
Desiree's father testified about his efforts to stay in contact with Desiree, including sending letters and cards, and asking for phone contact and visits. He is also attempting to learn to cope with his addiction and other issues that cause him to turn to drugs and alcohol. He submitted certificates recognizing and acknowledging his completion of programs to help him confront and deal with his issues. (Exhibits F, G, H, I, J and K.) He is working toward his GED. He has taken and hopes to take additional parenting programs. His goal is to build a foundation for a solid relationship with Desiree. He hopes to be in a drug treatment program or a halfway house as soon as possible. He believes that once he is released from incarceration that he will be able to obtain employment and to provide Desiree with love, understanding, stability and financial support. Eventually, he would like to give back to society what he took from it. However, other than through the department of corrections, "it has been quite a while" since the father was employed.
He stated that he understands how he repeated the negative, destructive behavior of his parents and family. Except for his mother, he cannot rely on anyone in his family. He is attempting to escape that cycle of alcoholism, addiction, incarceration and poverty. Because of his incarceration, he has lost contact with his family members. He has issues with his mother and her current family. Until recently, he did not know that she had not been a good parent to him.
During Desiree's life, such father said that he has been incarcerated "off and on." He knows that using drugs and being around Desiree is "not right." In the past, whenever he used drugs he stayed away from Desiree.
Also in the past, he has been in programs and subsequently stayed sober for a while. Prior to being incarcerated in 2004, he was in a program, but he did not complete it.
Desiree's father was incarcerated when she was born prematurely. He was released "a couple of days" after she was born.
On July 27, 2006, the father reported that he is scheduled to be released in August 2006, to a halfway house program where children are allowed. The father submitted several exhibits (exhibits F through L) to demonstrate his efforts to improve himself. They included a certificate of achievement from the State of Connecticut Addiction Services Unit (exhibit F), a certificate of completion of an eight-week anger management workshop (exhibit G), a certificate of completion for the Beyond Fear program (exhibit H), a waiting list notice for the weekly Narcotics Anonymous meeting (exhibit I) and a draft employment resume (exhibit J).
While the court recognizes and commends the father's efforts to improve himself and to deal with his mental health, addiction and parenting issues, the court recognizes, and hopefully Desiree's father will recognize, that once he is released from the control of the department of corrections, for the foreseeable future he will need to focus all of his efforts and strength in dealing with his own issues: getting treatment, staying sober, avoiding relapse, his previous issues, acquaintances and lifestyle, and becoming and remaining legally employed so that he can be legally self-sufficient.
An Attorney Who Previously Represented Desiree's Father:
The father's public defender who represented him in connection with threatening and breach of peace charges arising from his statements to the department of corrections officer, testified concerning the resolution of those charges.
Keymothie's paternal grandmother:
The paternal grandmother is the owner and director of a sober house, and she counsels women after their release from prison who are recovering from drug and alcohol abuse. She stated that between December 2003, and June 2004, she saw a great love between Keymothie and his father. She also stated that the father bought him clothes and a bicycle, and took him to stores. She was aware that DCF had ordered that there be no unsupervised contact between the father and Keymothie, and she enforced that.
While the court understands the paternal grandmother's loyalty to her son, her testimony about such father's parenting interests and attributes conflicts with the other evidence presented to the court.
APPLICABLE LAW: 1. Adjudication and Disposition Standards, and the Requirement of "Personal Rehabilitation":
Connecticut Practice Book section 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, 789 A.2d 1024 (2002), the Appellate Court explained the language of Conn. Practice Book section 33-3 (a), the predecessor of section 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 [section] 33-3(a) and case law regarding termination proceedings generally, we have determined that with regard to termination petitions brought under [section] 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 [section] 17a-112(c)(3)(B). Id., 225, 763 A.2d 83. In our explanation of the requirements of [section] 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.) 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." Id., 748-49.
2. Post-petition events:
In Ground(B)(i) 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 section 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 [section] 33-3(a) [now section 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, 763 A.2d 83; 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., 75 Conn.App. 485, 494-95, 816 A.2d 697 (2003).
3. The meaning of "personal rehabilitation":
To be rehabilitated within the meaning of our applicable statutes, rules and case law "does not require that a parent be able to assume the full responsibility for a child without the use of available support programs such as those provided by the petitioner . . . The respondent argues that the court ignored the significant strides that she has made in her drug rehabilitation efforts in the year prior to the termination proceedings and the positive interactions she had with her children during supervised visits. The court, however, makes an inquiry into the full history of the respondent's parenting abilities . . ." (Citations omitted; emphasis in original.) Id., 75 Conn.App. at 499.
As used in C.G.S. Section 17a-112, personal rehabilitation "`. . . refers to the restoration of a parent to his or her former constructive and useful role as a parent . . . In conducting this inquiry, the trial court must analyze the respondent's rehabilitative status as it relates to the needs of the particular child . . . 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.' (Citations omitted; internal quotation marks omitted.) In re Tabitha P., supra, 39 Conn.App. at 360-61, 664 A.2d 1168." Id., 75 Conn.App. at 499-500.
4. The Relationship Between a Respondent's Compliance With the "Specific Steps" and Whether There is "Sufficient Rehabilitation":
The Appellate Court explained that while the applicable standard is more than "any rehabilitation," it is not "full rehabilitation." Id., 75 Conn.App. at 500. The Appellate Court also explained that successful completion of the specific steps, e.g., "petitioner's expressly articulated expectations," is, presumably standing alone, "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." Id. 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 . . ." (Citations omitted.) In re Vincent D., 65 Conn.App. 658, 670, 783 A.2d 534 (2001).
Additionally, "[a]lthough the respondent has made successful strides in her ability to manage her life, the court had reasonable concerns that such rehabilitation was not enough to assume a responsible position in her children's lives, especially given the special needs of her children . . ." In re Jennifer W., supra, 75 Conn.App. at 500.
5. The Petitioner's Standard of Proof:
In termination of parental rights cases, the standard of proof is clear and convincing evidence. C.G.S. section 17a-112(j): "The Superior Court upon hearing and notice . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence (1) that the Department of Children and Families has made reasonable efforts . . . to reunify the child with the parent, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts provided such finding is not required if the court has determined at a hearing . . . that such efforts are not appropriate, (2) that termination is in the best interest of the child, and (3) that: (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; (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 the child has been provided specific steps to take to facilitate the return of the child to the parent . . . 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; . . . (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 . . ."
6. The Best Interest of the Child Requirements:
In determining by clear and convincing evidence whether termination is in the best interest of each child, ". . . the court is mandated to consider and make written findings regarding [the] seven factors [set forth in C.G.S. section 17a-112(k)]." In re Dorrell R., 64 Conn.App. 455, 467, 780 A.2d 944 (2001). In another decision the Appellate Court explained that the court's findings concerning the seven factors need not be by clear and convincing evidence:
"The seven factors set forth in [section] 17a-112(e) [currently 17a-112(k)] serve simply as guidelines to the court and are not statutory prerequisites that need to be proven before termination can be ordered . . . General Statutes [section] 17a-112(e) provides in relevant part that "in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding" those seven factors. As a result, there is no requirement that each factor be proven by clear and convincing evidence." In re Quanitra M., 60 Conn.App. 96, 104, 758 A.2d 863, cert. denied, 255 Conn. 903, 762 A.2d 909 (2000). (Citation omitted.) See also In re Victoria B., 79 Conn.App. 245, 258-59, 829 A.2d 855 (2003).
7. The construction of C.G.S. section 17a-112:
C.G.S. Section 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), cert. granted, 276 Conn. 903 (September 28, 2005).
8. Grounds Alleged by Petitioner:
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:
"(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; (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; . . . (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 . . ." (C.G.S. 17a-112(j)(3).)
Despite the order in section 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).
9. Explanation of Ground A, abandonment:
"`Abandonment focuses on the parent's conduct . . . A lack of interest in the child is not the sole criterion in determining abandonment . . . General Statutes [§ 17a-112(j)(3)(A)] defines abandonment as the fail[ure] to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child . . . Attempts to achieve contact with a child, telephone calls, the sending of cards and gifts, and financial support are indicia of interest, concern or responsibility for the welfare of a child . . . Abandonment occurs where a parent fails to visit a child, does not display love or affection for the child, does not personally interact with the child, and demonstrates no concern for the child's welfare . . .
"`[Section 17a-112(j)(3)(A)] does not contemplate a sporadic showing of the indicia of interest, concern or responsibility for the welfare of a child. A parent must maintain a reasonable degree of interest in the welfare of his or her child. Maintain implies a continuing, reasonable degree of concern. The commonly understood general obligations of parenthood entail these minimum attributes: (1) express love and affection for the child; (2) express personal concern over the health, education and general well-being of the child; (3) the duty to supply the necessary food, clothing, and medical care; (4) the duty to provide an adequate domicile; and (5) the duty to furnish social and religious guidance." (Internal quotation marks omitted.) In re Deana E., 61 Conn.App. 185, 193, 763 A.2d 37 (2000). In re Jermaine S., 86 Conn.App. 819, 839-40, 863 A.2d 720, cert. denied, 273 Conn. 938, 875 A.2d 43 (2005).
10. Explanation of Ground D, "no parent-child relationship":
Judge Wollenberg recently has explained the requirements of Ground D, no parent-child relationship:
"This ground alleged by DCF requires proof, by clear and convincing evidence, that 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 re-establishment of such parent-child relationship would be detrimental to the best interest of the child." This statutory definition, as it has been interpreted in case law, requires a finding that "no positive emotional aspects of the relationship survive.' In re Jessica M., 217 Conn. 459, 470, 586 A.2d 597 (1991). It is inherently ambiguous when applied to non-custodial parents who must maintain their relationship with their children through visitation. Id., 459; In re Valerie D., 223 Conn. 492, 531, 613 A.2d 748 (1992). Although the ultimate question is usually whether the child has no present memories or feelings for the natural parent, the existence of a loving relationship or a "psychological parent" relationship with one other than the natural parent does not, of itself, establish the no ongoing parent-child relationship ground for termination. In re Jessica M., supra, 473-75.
"Unlike the other nonconsensual grounds to terminate parental rights, the absence of a parent-child relationship is considered a `no fault' ground for termination. To establish this ground requires the trial court to make a two-pronged co-termination. First, there must be a determination that no parent-child relationship exists; and second, the court must look to the future and determine whether it would be detrimental to the child's best interest to allow time for such a relationship to develop. The absence of a parent-child relationship can be demonstrated in situations where a child has never known his or her parents so that no relationship ever developed between them, or where the child has lost that relationship so that despite its former existence, it has now been completely displaced. In re Juvenile Appeal (Anonymous), 177 Conn. 648, 670, 420 A.2d 875 (1979). Judicial interpretation has imposed a requirement that a child have `present memories or feelings' for the parent, and `at least some aspects of these memories and feelings are positive' to overcome this ground. In re Jessica M., supra, 217 Conn. 475; In re Juvenile Appeal (84-6,), 2 Conn.App. 705, 709, 483 A.2d 1101, cert. denied, 195 Conn. 801 (1984). The existence of positive feelings usually depends on the viewpoint of the child. In re Rayna M., 13 Conn.App. 23, 35, 534 A.2d 897 (1987). As the Appellate Court recently noted, `the feelings of the child are of paramount importance.' In re Tabitha T., 51 Conn.App. 595 602 (1999). `Feelings for the natural parent connotes feelings of a positive nature only.' Id." In re Jannessa C., Docket No. H12-CP04-009929-A, Superior Court, Judicial District of Hartford (Wollenberg, J., Aug. 2, 2006).
10. The Balancing of the Legitimate Interests of the Parents, Children and the State of Connecticut:
"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., 90 Conn.App. 565, 566-67, 877 A.2d 941 (2005).
C.G.S. SECTION 17A-112(k) FINDINGS:
CT Page 16877
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. On February 1, 2005, the court (Brenneman, J.) found upon clear and convincing evidence that it was not appropriate to continue to make reasonable efforts to reunify either Keymothie or Desiree with their respective fathers, and the court ordered that on or before February 28, 2005, DCF file petitions for termination of parental rights or a new permanency plan. (Exhibits 15 and 17, 1, 2.)Prior to February 1, 2005, Keymothie's father was offered supervised visitation through the paternal grandmother who was Keymothie's foster parent. Such father was also offered DCF case management and case assessment services. (Exhibit 11, 14.)
Prior to February 1, 2005, Desiree's father was offered supervised visitation, DCF case management services, and DCF case assessment services. Id.
Since his identity was, and is, unknown, DCF was unable to offer Akeem's father any services. The services offered to each child have included the following:
A. general DCF and social work services;
B. foster care;
C. medical services;
D. special needs and education services;
E. supervised visitation, and
F. 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 family. See 1. above and see exhibit 11, 11-12, 15, concerning services offered to the mother.
CT Page 16878
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 November 7, 2003, specific steps were signed by and ordered by the court for Keymothie's father (exhibit 3) and for Desiree's father (exhibit 2). Each such father was unwilling or unable to perform such specific steps. 4. The feelings and emotional ties of each child with respect to their 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.Neither Keymothie nor Desiree has developed any positive emotional tie to each such father.
Each such child relies and is dependent on the current foster mother for nurture and care.
5. The Age of Each Child:
Keymothie is ten years old. Akeem is eight years old. Desiree is five years 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 that children to return home in the foreseeable future.Neither Keymothie's nor Desiree's father has been able to adjust his circumstances, conduct or conditions sufficiently to make it in the best interests of his child to be placed in his home in the foreseeable future.
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 either Keymothie's or Desiree's father has been prevented from maintaining a meaningful relationship with his child.
Each such father did not provide specific information concerning his current or past economic circumstances.
DCF HAS PROVED, BY CLEAR AND CONVINCING EVIDENCE, THE GROUND A, GROUND B(i) AND GROUND D 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) on or about January 14, 2004, after the mother's nolo contendere pleas, Keymothie, Akeem and Desiree were previously adjudicated uncared for because of specialized needs;
(3) prior to filing its termination petitions, DCF made reasonable efforts to reunify Keymothie, and Desiree with each respective father (and the mother) through offers of and provision of services, but because the identity of Akeem's father was not known, and he did not come forward or identify himself, no services could be offered or provided to him;
(4) each such 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;
(5) prior to the filing of the neglect/uncared for petitions, and thereafter, because of their issues, needs and circumstances, Keymothie's and Desiree's father were unable or unwilling to maintain a reasonable degree of interest, concern, or responsibility for the welfare of each such child, and because he did not come forward to identify himself, and to take responsibility, Akeem's father has had no contact with Akeem, and thus as to each father DCF has established, by clear and convincing evidence, Ground A, abandonment;
(6) because of his circumstances, after each such uncared for adjudication, each father failed to achieve the degree of personal rehabilitation that encouraged the belief that prior to the filing of the TPR petitions, or that would encourage the belief that within a reasonable time after the filing of such petitions, considering the ages and needs of each child, the father could assume a responsible position in the life of each child, and thus as to each father DCF has established, by clear and convincing evidence, Ground B, failure to rehabilitate;
(7) while Keymothie recognizes his father as his biological parent, and while Desiree has visited with her biological father, there is no parent-child relationship between either father and his child of the kind that ordinarily develops as a result of such parent having met on a continuing, day-to-day basis the physical, emotional and moral needs of each such child, and after almost three years in the care of others than the mother or either father, to allow further for the establishment or re-establishment of a parent-child relationship would be detrimental to the best interests of each such child, given such almost three year separation and each such child's current circumstances and needs. Taking into consideration the law as set forth in In re Jessica M., and the lack of positive visitation relationship between Keymothie's and Desiree's father and each such child, DCF has established Ground D, no parent-child relationship, by clear and convincing evidence. Akeem does not know his biological father as such, and as to such father DCF has also established Ground D, no parent-child relationship.
THE BEST INTEREST OF EACH CHILD:
The court has considered the best interest of Keymothie, Akeem and Desiree. The court has considered whether it is in the best interest of Keymothie and Desiree to be returned to their respective fathers, including whether each such father reasonably could be expected and relied upon to provide the safe, secure, nurturing, stable, violence-free, and permanent environment idealized in the statutes and case law. The court has considered the evidence presented concerning the children's needs, situation and circumstances at the time of and prior to the filing of the neglect/uncared for petitions and the TPR petitions, their current needs, situation and circumstances, the bond between Keymothie and Desiree who have lived in the same homes, the length of time they have been out of their parents' care, custody and control and in foster care, and the reports of each of the children's growth and progress after being removed from their parents' care, custody and control. The court finds, by clear and convincing evidence, that it is in the best interest of Keymothie, Akeem and Desiree and that it is necessary for their growth, development, safety, security, stability, and permanency, that the rights of the mother and each father be terminated.
As set forth above, on June 1, 2006, the mother consented in writing to the termination of her rights.
CONCLUSION AND ORDERS:
Having considered the evidence and the statutory, Practice Book and case law requirements, the court finds, as to each of the three fathers, that DCF has proved, by clear and convincing evidence, Ground A, abandonment, Ground B(i), failure to rehabilitate and Ground D, no parent-child relationship.
Having considered Keymothie, Akeem and Desiree, their ages, experiences, needs, developmental requirements, sense of time, relationship with each respective father, their need for safety, security, stability and permanency, each father's circumstances, and the general totality of circumstances, the court finds that it is in the best interest of Keymothie, Akeem and Desiree to terminate the parental rights of each respective father and the mother (who consented to such termination). Because of Keymothie's and Desiree's fathers' circumstances, and the length of time it would take each of them, in the best of circumstances, to become able to be a responsible full-time parent, it is not in Keymothie's or Desiree's best interest to be returned to such father at this time or at any time in the foreseeable future. The mother's circumstances require the same finding and conclusion.
Accordingly, it is hereby ORDERED that the parental rights of each father of each of the three children are hereby terminated. Upon her consent, the parental rights of the mother are hereby terminated. The commissioner of the department of children and families is appointed as Keymothie's, Akeem's and Desiree's statutory parent. The initial status report concerning them 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.