Opinion
No. K09-CP07-010941-A
December 15, 2008
MEMORANDUM OF DECISION
This is a termination of parental rights ("TPR") case. The mother's petition to terminate the biological father's paternal rights to Lukas K. ("Lukas") initially was filed in a probate court on April 16, 2007. The factual allegations contained in such petition were:
. . . 2. [The alleged biological father] was in jail at the time Lukas . . . was born.
3. [The alleged biological father] was in jail for robbing my house and stealing my belongings.
4. [The alleged biological father] did not try to contact me when Lukas was born, and has not contacted me or Lukas since the date of his birth until I recently notified him that I was applying to the court to terminate his parental rights.
5. [The alleged biological father] has never sent Lukas any cards or presents for birthdays or holidays.
6. [The alleged biological father] has never sent any child support, nor has he formally acknowledged paternity . . .
The statutory ground for termination alleged in the TPR petition was set forth in General Statutes § 45a-717(g)(2)(A):
. . . the court may approve a petition terminating the parental rights and may appoint a guardian of the person of the child, or, if the petitioner requests, the court may appoint a statutory parent, if it finds, upon clear and convincing evidence, that (1) the termination is in the best interest of the child, and (2)(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 . . .
On May 4, 2007, after the biological father's written request, the probate court appointed counsel for the father.
On August 9, 2007, the probate court granted the biological father's motion to transfer the case to the superior court for juvenile matters ("SCJM").
On August 13, 2007, the mother's TPR petition was filed in the appropriate regional SCJM and thereafter new counsel were appointed for Lukas and the biological father.
On November 29, 2007, the mother's TPR petition was transferred by the regional SCJM to the SCJM Child Protection Session ("CPS") for trial.
On April 17, 2008, the court granted the mother's motion to amend the TPR petition to add a second TPR ground pursuant to General Statutes § 45a-717(g)(2)(C):
(C) there is no ongoing parent-child relationship which is defined as the relationship 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 or reestablishment of the parent-child relationship would be detrimental to the best interests of the child . . .
On Wednesday, December 10, 2008, the mother, her attorney, the attorney for Lukas and the attorney for the father appeared before the court. The biological father of Lukas who has been incarcerated since November 2004, participated by telephone for approximately thirty minutes because that was the maximum time allowed by the out of state prison facility, but his counsel was present in court for and actively participated during the entire trial which proceeded with respect to the issues of (1) whether such alleged father's parental rights should or should not be terminated based on one or both of the alleged grounds, and (2) whether termination of the biological father's parental rights was in the best interest of Lukas.
CT Page 19809
FACTS
Each of the above and following facts is found by clear and convincing evidence:1. The mother and the alleged father met approximately ten years ago when he was incarcerated in Tennessee. During such incarceration they communicated by letters and by telephone.
2. In March 2004, the biological father was released from incarceration and thereafter traveled to the state where the mother and her relatives were residing.
3. The biological father was not incarcerated from March 2004, through November 2004, and he and the mother had a relationship through October 2004.
4. In November 2004, the father was arrested for the offenses of burglary occurring on June 13, 2004; tampering with witnesses or informants occurring on November 5, 2004; theft by unauthorized taking occurring on November 5, 2004; theft by unauthorized taking occurring on November 12, 2004; and escape occurring on November 29, 2004. (Exhibit 1.)
5. On May 17, 2005, the father was booked into the state prison. Id.
6. Lukas was born in June 2005.
7. Lukas has resided with the mother since his birth.
8. Lukas has two older half-sisters with whom he has lived since his birth.
9. In October 2005, the mother went to a Halloween party where she met the person who was to become her current husband ("the," "such" or "Lukas'"stepfather"). They were married in May 2006. Such stepfather is the only father that Lukas has known, and Lukas relates to him as his father. Such stepfather provides for and meets the needs of Lukas.
10. The mother, the stepfather, the two half-sisters, Lukas and an approximately three-week-old child of the mother and the stepfather currently are an integrated functioning family.
11. The biological father and his attorney admit that such father has never seen or had contact with Lukas, and at this time because of his young age Lukas has no knowledge of such biological father. Such father has never paid child support.
12. Pursuant to General Statutes § 45a-717(e), a DCF social worker prepared a social study for the probate court. The biological father admitted that he was married to another woman during his relationship with the mother, but he did not disclose this to the mother. (Exhibit 6, 9.) The father claimed to the DCF worker who prepared the social study for the probate court that he was separated from such spouse during such relationship. Id. As of such June 2007, study, the biological father had been married for five years. Id. When he was incarcerated, the father learned about the mother's pregnancy with Lukas. Id. The mother testified that mutual friends had told him of Lukas' birth and had sent baby photographs of Lukas to him.
General Statutes § 45a-717(e) provides as follows:
(1) The court may, and in any contested case shall, request the Commissioner of Children and Families or any child-placing agency licensed by the commissioner to make an investigation and written report to it, within ninety days from the receipt of such request. The report shall indicate the physical, mental and emotional status of the child and shall contain such facts as may be relevant to the court's determination of whether the proposed termination of parental rights will be in the best interests of the child, including the physical, mental, social and financial condition of the biological parents, and any other factors which the commissioner or such child-placing agency finds relevant to the court's determination of whether the proposed termination will be in the best interests of the child. (2) If such a report has been requested, upon the expiration of such ninety-day period or upon receipt of the report, whichever is earlier, the court shall set a day for a hearing not more than thirty days thereafter. The court shall give reasonable notice of such adjourned hearing to all parties to the first hearing, including the child, if over fourteen years of age, and to such other persons as the court shall deem appropriate. (3) The report shall be admissible in evidence, subject to the right of any interested party to require that the person making it appear as a witness, if available, and subject himself to examination.
13. The biological father admitted to the DCF worker that he was incarcerated as a result of burglary and a "domestic dispute with a neighbor," and that he had been sentenced to "four to nine years." Id. He also admitted that " . . . he has been arrested many times in the past both for federal offenses and crimes committed in the State of Tennessee. He said that he was incarcerated `in the south for strong arm robbery, conspiracy to possess stolen firearms and eighteen or nineteen violations of probation in Tennessee.'" Id. Such biological father claimed that he had not been convicted of any crimes against women and children but that " . . . he had a bad temper when it comes to men . . ."
14. On September 25, 2008, the biological father was denied parole because he tested positive for heroin metabolite (a "dirty urine") and he had " . . . two majors . . ." in 2008. (Exhibit 7, 2.)
15. During his 2004 relationship with the mother, such father abused and threatened the mother, and he committed domestic violence before and after the mother became pregnant in August or September 2004. On several occasions the father threatened to kill the mother. The maternal grandmother overheard such threats two or three times. Such father twice also struck one of the half-sisters and he threatened such children who currently are afraid of him. The mother ended the relationship in October 2004. Since he has been incarcerated, such father has threatened to send his family after the mother.
16. The biological father's exhibits included several letters from the mother to him, the first of which was written toward the end of 2006. (Exhibits A-G.) The court has reviewed such exhibits.
17. 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).
The law as to abandonment has developed by construction and interpretation of General Statutes § 17a-112(j)(3)(A) and General Statutes § 45a-717(g)(2)(A). In In re Ashley E., 62 Conn.App. 307, 314-15, 771 A.2d 160 (2001), what was then General Statutes § 45a-717(f) was construed by the Appellate Court:
The respondent also argues that the evidence did not support a finding of abandonment. "Abandonment focuses on the parent's conduct . . . A lack of interest in the child is not the sole criterion in determining abandonment." (Citations omitted.) In re Kezia M., 33 Conn.App. 12, 17, 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993). General Statutes § 45a-717(f) 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." (Citations omitted; internal quotation marks omitted.) In re Kezia M., supra, 17-18.
Section 45a-717(f) 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. See id., 18.
"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." (Citations omitted; internal quotation marks omitted.) Id., 18.
The biological father's self-created fact of incarceration for a child's entire life to date is not a valid excuse for failing to perform the foregoing parental responsibilities and duties:
In the present case, the record supports the court's decision that the respondent abandoned the child. The findings support the conclusion that the respondent manifested no reasonable degree of interest, concern or responsibility for the child, either when he was incarcerated or when he was not. As we have recently stated, "[w]hile the respondent's imprisonment alone does not constitute abandonment, it does not excuse his failure to attempt either to contact or to visit with his children." In re Deana E., 61 Conn.App. 185, 194, 763 A.2d 37 (2000).
In re Ashley E., supra, 62 Conn.App. at 315.
In In re Deana E., 61 Conn.App. 185, 194, 763 A.2d 37 (2000), the Appellate Court affirmed the trial court's finding of abandonment, and stated the following:
The record supports the court's decision that the respondent abandoned his children. While the respondent's imprisonment alone does not constitute abandonment, it does not excuse his failure to attempt either to contact or to visit with his children. The record clearly demonstrates that, while in prison, the respondent made absolutely no effort to determine where his children were, to contact them or to have them visit with him . . .
See also In re Jermaine S., 86 Conn.App. 819, 839-40, 863 A.2d 720 (2005), and also see In re Jordan T., No. T11-CP07-012689-A, Superior Court, Judicial District of Windham, Child Protection Session at Willimantic (Foley, J., December 4, 2008), page 9:
The court further notes "[w]hile acknowledging that the respondent [mother]'s incarceration, in and of itself, does not dictate the determination that [she] has failed to achieve rehabilitation, it would be disingenuous for the court to overlook the fact that while [she] is serving [her] sentence, [the mother] will not have the ability to serve as a parenting resource for [her child]." In re Samantha B., Superior Court, Child Protection Session at Middletown (October 3, 2002, Rubinow, J.).
Lukas was born in June 2005. He is three and one-half years old. Regardless of the father's natural feelings for his biological son, he is not now and in the past has not been a part of his son's world. His son has achieved stability, continuity and permanency with the only family he knows without input, support and contact from such father. One of Connecticut's most experienced judges in child protection matters has very recently written the following:
"Virtually all experts, from many different professional disciplines, agree that children need and benefit from continuous, stable home environments." (Internal quotation marks omitted.) In re Juvenile Appeal (83-CD), 189 Conn. 276, 285 (1983), In re Jeisean M., 270 Conn. 382, 400-01 (2004), In re Davonta V., 285 Conn. 483, 494 (2008). Connecticut's statutory requirement, that placement decisions be made in a timely manner is based on the federal requirements of the 1980 Adoption Assistance and Child Welfare Act (AACWA)fn1 and the 1997 Adoption and Safe Families Act (ASFA) 49 U.S.C. §§ 620 et seq. Congress passed ASFA in 1997 to help prevent "foster care drift" by providing greater judicial oversight of the entire placement process, mandating the delivery of services to families, identifying children in need of adoption within twelve months, and terminating parental rights of parents within eighteen months of out of home placement. Indeed, under Connecticut's statutory scheme enacted to comply with ASFA, the commissioner is required to file a motion to review a permanency plan within nine months of removal of a child. Gen. Stats. 46b-129(k). If the permanency plan calls for adoption, the commissioner is required to file a petition for termination of parental rights not later than sixty days after such approval if a petition has not previously been filed. Subsection (4) . . .fn1 ASFA supplanted the Federal Adoption Assistance and Child Welfare Act of 1980, which "did not meet its objectives of reducing the time children spent in foster care, i.e., to prevent `foster care drift.'" In re Luke A., Superior Court for Juvenile Matters, Child Protection Session at Middletown (November 3, 1998, Foley, J.).
The concept of parental abandonment set forth in General Statutes § 17a-112(j)(3)(A) and General Statutes § 45a-717(g)(2)(A) and applied in the circumstances of the instant case and the timing of this TPR trial comports with the statutory policies set forth above.
The second ground alleged by the mother is pursuant to General Statutes § 45a-717(g)(2)(C):
. . . (C) there is no ongoing parent-child relationship which is defined as the relationship 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 or reestablishment of the parent-child relationship would be detrimental to the best interests of the child . . . The law as to "no ongoing parent-child relationship" has developed by construction and interpretation of General Statutes § 17a-112(j)(3)(D) and General Statutes § 45a-717(g)(2)(C). In In re Valerie D., 223 Conn. 492, 531, 613 A.2d 748 (1992), the Supreme Court explained such statute as follows:
Section 45a-717(f)(3) defines an "ongoing parent child relationship" as "the relationship 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." We have recognized that the statutory definition "is inherently ambiguous when applied to noncustodial parents who must maintain their relationships with their children through visitation." In re Jessica M., supra, 467-68. In such a case, we held that "the ultimate question is whether the child has no present memories or feelings for the natural parent." (Emphasis added; internal quotation marks omitted.) Id.
In In re Christian P., 98 Conn.App. 264, 268-70, 907 A.2d 1261 (2006), the Appellate Court explained the criteria to be used by the court in determining whether there is no parent-child relationship within the meaning of General Statutes § 17a-112(j)(3)(D):
General Statutes § 17a-112(j)(3)(D) provides that the court may grant a petition to terminate parental rights if it finds 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 reestablishment of such parent-child relationship would be detrimental to the best interest of the child . . .
"This part of the statute requires the trial court to undertake a two-pronged analysis. First, there must be a determination that no parent-child relationship exists, and second, the court must look into the future and determine whether it would be detrimental to the child's best interest to allow time for such a relationship to develop . . . In considering whether an ongoing parent-child relationship exists, the feelings of the child are of paramount importance . . . The ultimate question is whether the child has no present memories or feelings for the natural parent . . . Feelings for the natural parent connotes feelings of a positive nature only." (Citations omitted; internal quotation marks omitted.) In re Jonathon G., 63 Conn.App. 516, 525, 777 A.2d 695 (2001).
In In re Jessica M., 217 Conn. 459, 586 A.2d 597 (1991), our Supreme Court defined an ongoing parent-child relationship as it applies to noncustodial parents. The court stated that termination of a noncustodial parent's rights requires a finding that "the child has no present memories or feelings for the natural parent." (Internal quotation marks omitted.) Id., 468. When the child does have present memories or feelings, there must be a finding that "no positive emotional aspects of the relationship survive." Id., 470. We recognize that "the evidence regarding the quality of [a parent's] relationship with [a] child must be reviewed in the light of the [parent's] limited access to visitation at the time of the petition." (Internal quotation marks omitted.) In re Alexander C., 67 Conn.App. 417, 425, 787 A.2d 608 (2001), aff'd, 262 Conn. 308, 813 A.2d 87 (2003).
With respect to the first required step of the analysis, the father admits that no parent-child relationship exists. With respect to the second required step of the analysis, the court must look into the future and determine whether it would be detrimental to the child's best interest to allow time for such a relationship to develop. Since the father may be incarcerated through November 2013, although he could be paroled earlier than such date including in 2009; since Lukas believes that the stepfather is his "real father," and he is not aware of the biological father; and since Lukas perceives his mother, his stepfather, his older half-sisters and his new half-sister as his family, it would be detrimental to his best interest to allow time for such new relationship to develop.
GENERAL STATUTES § 45a-717(h) FINDINGS
The court has made findings earlier in this decision, some of which relate to the seven statutory factors applicable to the biological father. See pages 1-6, supra. In addition to those findings, the court makes the following findings applicable to such father:
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.From the prison system the father has sought and obtained anger management services, substance abuse treatment, victim impact classes and parenting classes. (Exhibit 6, 9.)
2. 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).No such orders were entered.
3. 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.The court finds that Lukas has strong emotional ties to his mother, stepfather and half-siblings. Lukas has no emotional bond with his biological father, whom he has never seen and about whom, because he is three years old, he is not aware.
4. The age of such child.
Lukas is three years old.
5. 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 including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions, and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child. The court finds that respondent father has not maintained any contact with the child. As set forth throughout this memorandum of decision and in the evidence, the biological father has been incarcerated outside of Connecticut since before Lukas was born, and thus he has been unable to adjust his circumstances, conduct or conditions to enable him to have contact with Lukas and to make it in the best interest of Lukas to have contact with such biological father in the foreseeable future. 6. 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 biological father has been prevented from maintaining a relationship with Lukas respectively for any reasons other than his personal choice or circumstances. By way of example, the biological father has been incarcerated since before the birth of Lukas more than three years ago and as of the date of this court's decision he will continue to be incarcerated pursuant to his state sentences for an unknown period of time with a maximum release date of November 2013. (Exhibit 1.) The court cannot speculate about his actual release date. In re Selena O., 104 Conn.App. 635, 644-45, 934 A.2d 860 (2007).
Such father did not provide specific information concerning his current or past economic circumstances.
WITH RESPECT TO THE FATHER OF LUKAS THE MOTHER HAS PROVED, BY CLEAR AND CONVINCING EVIDENCE, THE GROUND A AND C ALLEGATIONS OF ITS TERMINATION OF PARENTAL RIGHTS PETITION.The court finds that the mother has alleged and proved, by clear and convincing evidence, that
(1) this court has jurisdiction over the matter and the parties;
(2) the biological father has not claimed Native American tribal affiliation;
(3) the court is not aware of any other court proceedings concerning custody of Lukas;
(4) Lukas 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;
(5) there is no ongoing parent-child relationship between Lukas' 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 Lukas. 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.
Only one of the grounds for adjudication alleged by the mother 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 . . . exists by clear and convincing evidence . . ."
In re Coby C., 107 Conn.App. 395, 401 (2008).
THE BEST INTEREST OF LUKAS
The court has considered the best interest of Lukas. The court has considered whether it is in the best interest of Lukas for the biological father to initiate contact with him, and the court has considered Lukas' " . . . interests in sustained growth, development, well-being, and continuity and stability of [his] environment . . ." In re Ryan R., 102 Conn.App. 608, 625-26 (2007).
The court finds, by clear and convincing evidence, that it is in the best interest of Lukas and that it is necessary for his well-being, growth, development, safety, security, stability, continuity, consistency and permanency, that the rights of the biological father be terminated.
THE RIGHTS OF A BIOLOGICAL FATHER WHO HAS ABANDONED HIS CHILD AND WHO HAS NO ONGOING PARENT-CHILD RELATIONSHIP ARE CIRCUMSCRIBED BECAUSE OF THE LACK OF A RELATIONSHIP WITH THE CHILDThe biological father has claimed that he had a right to participate in the trial by audiovisual conferencing hookup from the out of state prison facility where he is incarcerated. In support of such claim he offered the following from a letter from the warden of such facility:
The hearings room at this facility does have video-conferencing equipment. That being said, the hearings room is used primarily for functions within the facility, such as parole board bearings, sentence review hearings, etc. These hearings take place Tuesdays, Thursdays, and Fridays each week. We do not schedule day long trials in this room. However, if you are successful in your argument to use video-conferencing, you may contact my office, prior to the Court scheduling a date, and request if there is a Monday or Wednesday that is available for the hearing. The room is frequently booked, and therefore unavailable to schedule for longer trials.
(Exhibit H, 2.)
There is no audiovisual conferencing equipment installed in the Middlesex J. D. court house where the child protection session is located. The attorney for the father suggested that the court could move to New Haven, Bridgeport or Rockville court houses for the purpose of conducting the trial with the use of audiovisual conferencing equipment. However, the father did not identify any statute or Practice Book Rule that would allow the court to conduct such a CPS hearing involving audiovisual conferencing equipment in Middletown, New Haven, Bridgeport or Rockville. Such authority is not provided in Practice Book chapters 26 through 35 or in any statute. Compare Practice Book § 23-68, entitled "Where Presence of Person May Be by Means of an Interactive Audiovisual Device":
(a) The appearance of an incarcerated individual for any proceeding set forth in subsection (b) of this section may, in the discretion of the judicial authority on motion of a party or on its own motion, be made by means of an interactive audiovisual device. Such audiovisual device must operate so that such person and his or her attorney, if any, and the judicial authority can see and communicate with each other simultaneously. In addition, a procedure by which such person and his or her attorney can confer in private must be provided. For purposes of this section, judicial authority includes family support magistrates.
(b) Proceedings in which an incarcerated individual may appear by means of an interactive audiovisual device are limited to civil and family (1) proceedings prior to trial including, but not limited to, short calendar, prejudgment remedy, lis pendens, mechanic's lien and other discovery and procedural hearings, case evaluation conferences, pretrials, alternative dispute resolutions, status conferences, trial management conferences, (2) hearings on post-trial motions and (3) matters within the jurisdiction of the family support magistrate division.
(c) Unless otherwise required by law or unless otherwise ordered by the judicial authority, prior to any proceeding in which a person appears by means of an interactive audiovisual device, copies of all documents which may be offered at the proceeding shall be provided to all counsel and pro se parties in advance of the proceeding.
(d) Nothing contained in this section shall be construed to establish a right for any incarcerated person to appear by means of an interactive audiovisual device.
And compare also Public Act 08-1, § 15, requiring the department of correction to provide a secure video connection so the board of pardons and paroles can conduct parole release hearings by video conference.
The father had represented through counsel that he would be able to attend a hearing in person if it were scheduled in November 2008. The court thus granted the father a last trial date continuance of approximately three months and a court services officer informed counsel that "a firm and final trial date would be scheduled in early December." The court accommodated the respondent father's request because it was known that the maximum time the father could be available by telephone connection from the prison was for approximately thirty minutes. Such telephonic communication is permitted by our case law. In re Juvenile Appeal (NO. 10155), 187 Conn. 431, 437, 446 A.2d 808 (1982).
At the beginning of the biological father's telephone connection on December 10, 2008, "the firm and final trial date," the court and counsel offered the biological father and his counsel the opportunity for the father to testify out of order. The attorney for the father rejected the offer because he wanted the father to hear his argument of pre-trial motions, all of which ultimately were denied by the court. During such telephone connection counsel for the father admitted that the father had never seen nor had he any contact with Lukas during the three and one-half years of his life. The father did not testify before the trial concluded.
With respect to the rights of a biological father, Judge Foley recently has explained that such rights are proportional to the father's actual involvement with the child and the mother:
The respondent father has not been actively involved with this child nor the mother and therefore has failed to develop a meaningful relationship with him. In the case of Michael H. v. Mark K., 898 P.2d. 891, 896 (Cal. 1995), the California Supreme Court held that unless the natural father can prove "that he has promptly come forward and demonstrated his full commitment to his parental responsibilities the federal Constitution protects only the parental relationship that the unwed father has actively developed," citing Lehr v. Robertson, 463 U.S. 248, 261 (1983). The respondent in the present case did not robustly assert his rights to paternity. He did not vigorously and actively assert his paternal claim. He has abandoned the child within the contemplation of the law. He has not been providing financial, educational, emotional or moral support for the child.
In re Shane B., 2008 Ct.Sup. 7204, 7206, No. W-10-CP06 014934-A, Superior Court, Judicial District of Windham, Juvenile Matters at Willimantic (Foley, J., April 8, 2008).
In the Lehr decision at 261-63, the Supreme Court stated that " . . . the mere existence of a biological link does not merit equivalent constitutional protection . . .": The difference between the developed parent-child relationship that was implicated in Stanley and Caban, and the potential relationship involved in Quilloin and this case, is both clear and significant. When an unwed father demonstrates a full commitment to the responsibilities of parenthood by "com[ing] forward to participate in the rearing of his child," Caban, 441 U.S., at 392, his interest in personal contact with his child acquires substantial protection under the Due Process Clause. At that point it may be said that he "act[s] as a father toward his children." Id., at 389, n. 7. But the mere existence of a biological link does not merit equivalent constitutional protection. The actions of judges neither create nor sever genetic bonds. "[T]he importance of the familial relationship, to the individuals involved and to the society, stems from the emotional attachments that derive from the intimacy of daily association, and from the role it plays in `promot[ing] a way of life' through the instruction of children . . . as well as from the fact of blood relationship." Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 844 (1977) (quoting Wisconsin v. Yoder, 406 U.S. 205, 231-33 (1972)).fn.17
The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child's future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child's development.[fn 18] If he fails to do so, the Federal Constitution will not automatically compel a State to listen to his opinion of where the child's best interests lie.
. . . Appellant has never had any significant custodial, personal, or financial relationship with Jessica, and he did not seek to establish a legal tie until after she was two years old.19 . . .
(Footnotes omitted.)
In footnote 19, at page 262-63, the Supreme Court noted that in Lehr, the proposed adoption was by the husband of the biological mother, as in this case, and in such a case the balance of equities is more favorable to such an adoption:
This case happens to involve an adoption by the husband of the natural mother, but we do not believe the natural father has any greater right to object to such an adoption than to an adoption by two total strangers. If anything, the balance of equities tips the opposite way in a case such as this. In denying the putative father relief in Quilloin v. Walcott, 434 U.S. 246 (1978), we made an observation equally applicable here:
"Nor is this a case in which the proposed adoption would place the child with a new set of parents with whom the child had never before lived. Rather, the result of the adoption in this case is to give full recognition to a family unit already in existence, a result desired by all concerned, except appellant. Whatever might be required in other situations, we cannot say that the State was required in this situation to find anything more than that the adoption, and denial of legitimation, were in the `best interests of the child.'" Id., at 255.
As set forth throughout this decision, this is a case where the biological father has never had any contact with Lukas, so he has not been a part of an intact family including Lukas. He thus does not have the benefit of any presumption that he is fit to care for Lukas or that it would be in Lukas' best interest to interact with him. Compare Roth v. Weston, 259 Conn. 202, 216, 789 A.2d 431 (2002). See also Dutkiewicz v. Dutkiewicz, 289 Conn. 362, 378 n. 11 (2008):
As we noted in Roth, "[t]here are . . . limitations on these parental rights. Some of these limitations arise out of an appreciation of the state's long recognized interests as parens patriae. See Reno v. Flores, 507 U.S. 292, 303-04, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993); Santosky v. Kramer, 455 U.S. 745, 766, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Parham v. J.R., 442 U.S. 584, 605, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944); see also General Statutes § 10-204a (requiring parents to immunize children prior to school enrollment); General Statutes §§ 14-100a, 14-272a (requiring child restraint in vehicles); General Statutes § 17a-81 (authorizing emergency medical treatment where parent withholds consent); General Statutes §§ 31-23, 31-24 (restricting child labor from certain occupations or workplaces); General Statutes § 53-21a (prohibiting parents from leaving child unsupervised in public accommodation or vehicle). Furthermore, it is unquestionable that in the face of allegations that parents are unfit, the state may intrude upon a family's integrity. Parham v. J.R., supra, 603; see General Statutes § 17a-101g (removal of child where imminent risk of harm); General Statutes §§ 17a-112(j), 45a-717 (termination of parental rights)." Roth v. Weston, supra, 259 Conn. 224.
The father's right to participate in the trial under the circumstances that he has caused for himself must also be considered in the context of the length of the continuances and delays engendered by efforts of his counsel to have personal contact with him in the out of state prison facility and as a result of the father's representation that the court's final continuance of such trial would allow him to appear in person for the trial. See In re Candids E., 111 Conn.App. 210, 214-19 (2008) (it was not a violation of the respondent's due process rights to proceed in her absence because, in part, because delaying the matter would have placed " . . . an unnecessary burden on the petitioner's interest in providing permanency to children . . .").
Instead of presenting evidentiary matters during the time the biological father was available by telephone, the attorney for the father focused on pre-trial objections to the mother's expert and other witnesses and to her exhibits. Inter alia, "on the grounds of relevancy" he sought to bar the testimony of the maternal grandmother who had opportunity to observe the biological father and who had overheard such father threaten to kill the mother on two or three occasions, the stepfather who has been the only father that Lukas has known and who financially has been supporting Lukas, and a DCF program supervisor. He also "on the grounds of relevancy" objected to all but one of the mother's proposed exhibits including records relating to the father's criminal history and September 2008 appearance before the out of state parole board. In a civil or another case that is not a child protection case it may be more explicable (although equally doubtful of propriety and success) as a strategy for a defendant or respondent to attempt to eviscerate the plaintiff's or petitioner's case by pre-trial objections to exclude most of such party's witnesses and exhibits.
As respondent father's counsel knows, however, this is a child protection matter and such counsel should have understood and anticipated in using his client's half-hour of phone time that the court was not going to exclude fact witnesses, including close family members, with, and exhibits containing, relevant and probative information, inter alia, about such father. The father's counsel should have realized that if the court had sustained such objections it could have engaged in an impermissible form of prior restraint. In re Brianna B., 66 Conn.App. 695, 700 n. 5, 785 A.2d 1189 (2001).
Counsel's strategy was neither justifiable given the father's limited time to be heard by the court nor because the objections were frivolous was it permissible under the Rules of Professional Conduct. See Brunswick v. Statewide Grievance Committee, 103 Conn.App. 601, 614-15, 931 A.2d 319 (2007). As stated in State v. Wheeler, 37 Conn.Sup. 693, 697, 435 A.2d 372 (1981), with respect to a motion, such objections were and are " . . . too frivolous to warrant any [further] discussion . . ."
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) the mother proved that (a) Lukas has been abandoned by his biological 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) and there is no ongoing parent-child relationship between such father and Lukas, 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 Lukas; and (c) it is in the best interest of Lukas to terminate the parental rights of the biological father.
Accordingly, it is hereby ORDERED that the parental rights of the biological father to Lukas are hereby terminated.