Opinion
No. H-12 CP09-012801-A, H-12 CP09-012607-A, H-12 CP09-012608-A
April 11, 2011
MEMORANDUM OF DECISION
The department of children and families (DCF) has brought petitions to terminate the parental rights (TPR) of the following individuals: (i) Tiquana W. to her three minor children named above; (ii) Eric. P. to his minor child Elijah W.; (iii) Larry S., an individual named by Tiquana W. as possibly being Trevor's father, and John Doe, to whom Judge Dyer ordered notice by publication after doubting the veracity of Ms. W.'s testimony under oath as to Trevor's paternity, to the minor child Trevor W.; and (iv) James W. (who is also known as Jakye W. and James R. and will, for purposes of convenience, be referred to herein as James W.), Chris O., and Charles F., three men named by Tiquana W. as possibly being Quirvontrey's father, to the minor child Quirvontrey W. Trial of this matter was scheduled for March 15, 2011, at which time none of the respondents appeared. Some of them had been previously defaulted pursuant to Practice Book § 35-8, as set forth in the margin, and the remaining respondents were defaulted on that date, as also set forth in the margin. The court then heard testimony from Pamela St. John from Behavioral Health Consulting Services (BHCS), who supervised the respondent mother's weekly visitations with her children from December 2009 until they were suspended on February 25, 2011, for reasons described on p. 47 of this decision, received various exhibits offered by the petitioner, and heard closing argument from counsel for the petitioner and the minor children, both of whom urged the court to grant the petitions as in the children's best interests, and the trial was adjourned.
On March 23, 2010, abode service of the petitions was made on the respondent mother and respondent Chris O., with an initial appearance date of April 8, 2010. The respondent mother appeared that day, but Chris O. did not. A military affidavit having been filed, this court entered a default against Chris O. on March 15, 2011. A default also entered against the respondent on March 15, 2011, as she did not appear for trial on that date.
Respondent Eric. P. was served in-hand with the petition at the Carl Robinson Correctional Institution on March 19, 2010, with an initial appearance date of April 8, 2010. He appeared that day and counsel was appointed. Evidence adduced by the petitioner on the day of trial showed that he has since been released from incarceration, and when he did not appear for trial on March 15, 2011, a default was entered.
The original TPR petition regarding Trevor named only the respondent mother because she had provided information to DCF that the child's father was a deceased individual named William Trevor D. She later told the petitioner that Larry S. or an unknown S., and that motion was granted by the court, Dannehy, J., on August 3, 2010. Notice by publication was also approved as Mr. S., having been contacted by DCF, had refused to provide his address. On August 12, 2010, the Hartford Courant published notice to Larry S. that this matter was pending and a hearing affecting his rights would be heard on September 14, 2010. He did not appear in court on that latter date, but the court was notified that he had another court appearance in Community Court that day and rescheduled the matter for October 19, on which date the court was notified of his Hartford address. Abode service of an amended TPR petition was made on him at that address on March 3, 2011, with an initial appearance date of March 15, 2011, at which time he did not appear and, a military affidavit having been filed, default was entered.
On October 19, 2010, the court, Dyer, J., also ordered the petitioner to provide notice of the pendency of these proceedings by publication to John Doe as Trevor's possible father. On November 17, 2010, the Hartford Courant published notice to John Doe that the next day the court would hear this matter on November 18, 2010. On November 18, 2010, this court approved an oral motion to amend the petition by citing in John Doe as a party respondent. He did not appear that day and was defaulted.
On March 11, 2010, the court, Wollenberg, J.T.R., approved motions for notice by publication on respondents Frederick C. and James W., after review of affidavits of diligent search submitted by the petitioner showed that DCF had been unable to locate them. In accordance with the court's order, the Hartford Courant published notice to them on March 19, 2010, of hearing on the TPR petition on April 8, 2010. Neither person appeared on that date, and military affidavits having been filed, the court, Dannehy, J., that day entered defaults against them.
The court now vacates the default as to John Doe. At the time of the default, the court did not notice that publication had occurred only the day before. One day of constructive notice is not sufficient to satisfy this court that a default should enter. General Statutes Section 17a-112 provides that the superior court may grant a petition for termination of parental rights upon notice as provided for in General Statutes Section 45a-716, which provides in subsection (c) that notice by publication must occur at least ten days before the scheduled hearing. Although § 45a-716(c) facially addresses publication only on identified persons, the same logic is applicable to an anonymous John Doe. The department is hereby directed to obtain a new plea date for John Doe and to provide constructive notice to him by publication at least ten days prior to that plea date.
General Statutes Section 17a-112 provides in pertinent part as follows:
"(i) The Superior Court upon hearing and notice, as provided in sections 45a-716 and 45a-717, may grant a petition for termination of parental rights based on consent filed pursuant to this section if it finds that . . ."
General Statutes Section 45a-716 provides in pertinent part as follows:
"(c) Except as provided in subsection (d) of this section, notice of the hearing and a copy of the petition, certified by the petitioner, the petitioner's agent or attorney, or the clerk of the court, shall be served at least ten days before the date of the hearing by personal service or service at the person's usual place of abode on the persons enumerated in subsection (b) of this section who are within the state, and by first class mail on the Commissioner of Children and Families and the Attorney General. If the address of any person entitled to personal service or service at the person's usual place of abode is unknown, or if personal service or service at the person's usual place of abode cannot be reasonably effected within the state, or if any person enumerated in subsection (b) of this section is out of the state, a judge or the clerk of the court shall order notice to be given by registered or certified mail, return receipt requested, or by publication at least ten days before the date of the hearing. Any such publication shall be in a newspaper of general circulation in the place of the last-known address of the person to be notified, whether within or without this state, or, if no such address is known, in the place where the petition has been filed."
The matter is now ready otherwise for decision, and the facts found herein were established by clear and convincing evidence.
I THE MINOR CHILDREN
In July 2009, while 6 1/2 months pregnant with Trevor, the respondent mother went to the hospital in labor due to placenta previa. She had left her two children in the care of her mother, with whom she had been living, and while she was hospitalized her mother brought Quirvontrey to the hospital because of a swollen arm. Physicians determined that he had a history of fractured bones dating back to April, and when DCF was not satisfied with the respondent mother's explanations as to the causes of those injuries, both Elijah and Quirvontrey were taken into custody on a 96-hour hold pursuant to General Statutes § 17a-101g, later ratified by an order to show cause signed on July 30, 2009, by Superior Court judge trial referee Wollenberg, and sustained by agreement the next day. In September the mother admitted to Hartford police officers that the injuries occurred after she had become angry and thrown Quirvontrey into a playpen when he would not stop crying. When Trevor was born in October, he was taken into custody on an OTC as well for the same reasons.
General Statutes Section 17a-101g provides in relevant part as follows: "(c) If the Commissioner of Children and Families, or his designee, has probable cause to believe that the child or any other child in the household is in imminent risk of physical harm from his surroundings and that immediate removal from such surroundings is necessary to ensure the child's safety, the commissioner, or his designee, shall authorize any employee of the department or any law enforcement officer to remove the child and any other child similarly situated from such surroundings without the consent of the child's parent or guardian. The commissioner shall record in writing the reasons for such removal and include such record with the report of the investigation conducted under subsection (b) of this section."
Trevor was placed into a two-parent foster home within a couple of weeks, and in November and December of 2009 DCF placed Elijah and Quirvontrey in that same home. All three children have been there since then, and the foster parents have told DCF they would like to adopt them. All the evidence presented to the court shows that the children are comfortable in the foster home and that the foster parents have taken good care of them, addressed their medical needs, and provided a loving, secure home that has met the children's psychological and developmental needs. The court finds particularly credible the testimony of Ms. St. John, who has regularly seen the foster parents at pick-up and drop-off of the children for visitations since December 2009. She reported that the children are calm in the presence of the foster parents and responded affectionately and lovingly to them. She testified that she was able to observe that the children felt safe and loved by the foster parents, a statement that is consistent with and buttressed by the observation of the DCF social worker that the foster parents are a nurturing couple who appear to be meeting the physical and emotional needs of these children.
The oldest of the three children, Elijah, was diagnosed in April 2008 with Wilms' Tumor, a rare form of kidney cancer that led to his malignant left kidney being removed in May 2009 and a round of chemotherapy thereafter. Aftercare treatment of this disease requires ongoing monitoring by the parent of the child's energy levels, diet, and various bodily conditions and quarterly medical checks for the next two years to make sure that the tumor has not returned, but Ms. W. was inconsistent in bringing Elijah for the follow-up medical visits. Once in foster care, he was examined by urologists and had a renal ultrasound and his remaining kidney was, as of the end of evidence, believed to be healthy and working properly. He is toilet trained and developing normally. Elijah had been in preschool three days a week earlier in this school year, and in March 2011 he was accepted into and was scheduled to enter a magnet school kindergarten.
Early in foster care, however, Elijah exhibited various behavioral problems that included significant temper tantrums and becoming physically aggressive. After a psychological evaluation in February 2010, Dr. Franklin diagnosed him as having reactive attachment disorder. Dr. Franklin's written report noted Elijah to be "a highly reserved and sensitized child who is cautious in his interactions with others. At the very minimum, there is a perception that he has been a witness to domestic violence or trauma." Dr. Franklin also observed an "anger which appears disproportionate to the perceived stimuli" in Elijah's responses to certain testing protocols; and his written evaluation said that such anger may manifest itself as "`rage' fueled tantrums . . ." Dr. Franklin concluded that Elijah is "likely to have difficulties in initiating and maintaining appropriate relations with peers as well as being unduly fearful in the presence of adults," and opined that Elijah "will require not only ongoing services with regards to his medical condition, but psychological interventions as well." The court has carefully reviewed Dr. Franklin's written report and finds his conclusions to be thoughtful and credible, and except as otherwise stated herein the court adopts his findings and opinions as findings of fact in this case.
Quirvontrey was hospitalized for seven weeks after his birth due to meconium aspiration after a tube inserted into his mouth nicked a lung. It was surgically repaired, but Ms. W. did not take him for regular post-natal care or for regular vaccinations. After being taken into DCF custody, Quirvontrey was examined at the Connecticut Children's Medical Center (CCMC), where physicians found three healing fractures on both arms that resulted from "significant trauma . . . on more than one occasion." Two of the fractures had occurred two to four months previously, and the other one approximately 2-3 weeks earlier. Doctors concluded that the types of fractures "are highly specific for inflicted injury" that would have caused "significant pain" when they occurred "followed by disuse of the arm(s) and in the case of his elbow significant obvious swelling." Ms. W. had taken Quirvontrey at nine months of age to St. Francis Hospital in April 2010, where she reported that upon the child's return from seeing his father she had noticed the child crying when he moved his arm. After an x-ray was read as showing no fractures, the child was released to go home, but hospital staff told her to follow up at CCMC if any symptoms continued. Although Quirvontrey's arm continued to be swollen and he did not use it, Ms. W. did not seek any further medical care for the condition. Only when she was in the hospital and her own mother took Quirvontrey back to St. Francis did doctors, and eventually DCF, learn that the problem had persisted. The doctors were initially worried that the injuries had put Quirvontrey at risk for permanent disability but after physical therapy the fractures did heal, although doctors did note that one arm was longer than the other because one of the fractures had been on the arm's growth plate.
The evidence on Quirvontrey's injuries establishes that the injuries to the child were caused by the respondent mother. When DCF first became aware of the fractures, Ms. W. initially tried to assign blame to the child's father by saying that she had only noticed them after Quirvontrey had returned from a two-week stay with his father, and then later she blamed a younger sibling for causing the injuries. When questioned by DCF staff in July 2009, Ms. W. also said that a few weeks earlier she had been in the living room after leaving Quirvontrey on a bed in the bedroom under the supervision of a ten-year-old child when she heard Quirvontrey cry. She said she had gone back into the bedroom and found him wedged between the mattress and headboard and with a bloody nose and swollen elbow. The maternal grandmother told DCF that Ms. W. told her that the child had fallen off of the bed, but doctors credibly told DCF that merely falling off the bed, without some other specific event, could not have caused any of these injuries. From the beginning, Ms. W.'s explanations were not credible. For example, she claimed not to know where the respondent father was, even though she claimed to have left her child with him for two weeks. Although she did take the child to the hospital, she falsely claimed that the hospital did not tell her to return if the problems persisted; and, regardless of what the hospital did tell her, her ignoring Quirvontrey's continued swollen and unused arm shows that she was not paying adequate care to the child's physical condition.
DCF was initially unsure whether the respondent mother or her mother, the maternal grandmother of these children, had been responsible for Quirvontrey's most recent injuries because they might have occurred when Ms. W. was living with her mother. DCF thus took not only the respondent's children into custody on an OTC, but the maternal grandmother's own minor children. At a DCF safe home a few days after being taken into DCF care, two of the grandmother's children asked a DCF social worker why they were there, and the social worker explained to them that they had been removed because of what had happened to Quirvontrey's arms. One of the children, 4 1/2-year-old Daijanah, then volunteered that she had seen Ms. W. pull Quirvontrey from a pack and play by his arms and throw him back in by his arms and that was how the arms had been broken. At a forensic interview the next day, Daijanah said that Ms. W. had broken Quirvontrey's arm by repeatedly throwing the child into the playpen. Among the statements she made were the following: "He got broked and her kept doing it again and again." "His arm was broke he can't even move it cuz it hurts. "She kept throwing him in the play pen." "He got up again, her do it again." In September Ms. W. admitted to the police that in April 2009 Quirvontrey kept crying and "would not shut up" and she then became angry, picked him up and threw him into the playpen, after which he suddenly became quiet and within a few minutes was bleeding from his nose.
When Quirvontrey was first taken into custody, at nearly 13 months of age, he was just learning to crawl and he appeared slightly behind in his development to DCF social workers. But various documents submitted into evidence, and found credible by the court, show him now to be developing normally, a happy child who is well cared for by his foster parents. By October 2009, he had begun walking, and at the February 2010 interactional evaluation Dr. Franklin concluded that he "appear[ed] to be on task developmentally." The July 2010 social study in support of the TPR petition said that he is almost always smiling and laughing, walking and running well, and had no behaviors that are not typical for a child his age. By February 2011, DCF reported him to be "healthy," "very smart," and making "significant developmental strides since being placed in the current foster home." These reports are all found credible.
The youngest of the three children, Trevor, was taken into custody shortly after his birth and has been in the same foster home since shortly thereafter. He is healthy and growing and gaining weight normally. He is an easy-going child who gets upset only when needing to be changed or fed. He has failed two hearing tests, however, and has seen a hearing specialist on several occasions. All three children have been taken care of well in the foster home, and have bonded with each other and the foster parents.
II ADJUDICATORY DECISION
Trial of a petition to terminate parental rights has two phases, adjudication and disposition. In the adjudicatory phase of the proceeding, the court must make separate determinations as to reasonable efforts and the statutory grounds for termination.
A Effect of Default
Each of the remaining respondents has been defaulted. Practice Book § 32a-2(a) establishes that child protection proceedings, including these petitions for termination of parental rights, are civil matters. See also In re Samantha C., 268 Conn. 614, 634, 842 A.2d 1124 (2004); In re Shonna K., 77 Conn.App. 246, 253, 822 A.2d 1009 (2003). As in other civil matters, the entries of defaults against the respondents establish admission of the material facts constituting the petitioner's cause of action, and conclusively determine that the petitioner has prevailed on each of the elements at issue in the adjudicatory phase of this proceeding. Commissioner of Social Services v. Smith, 265 Conn. 723, 732-33, 830 A.2d 228 (2003) (respondent in child support proceeding who fails to respond to pleadings "is deemed to have judicially admitted the underlying facts of the support petition"); see also Bank of America, FSB v. Franco, 57 Conn.App. 688, 693, 751 A.2d 394 (2000). In an abundance of caution, appropriate to the gravity of the TPR issues at hand, however, the court has further considered the petitioner's evidence that addresses the specific adjudicatory grounds alleged.
Practice Book Section Sec. 32a-2 provides in pertinent part as follows: "All hearings are essentially civil proceedings except where otherwise provided by statute . . ."
B Reasonable Efforts
General Statutes Section 17a-112(j)(1) requires the court to find whether
General Statutes Section 17a-112(j) provides, in pertinent part, as follows: "The Superior Court . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that (1) the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent in accordance with subsection (a) of section 17a-111b, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts, except that such finding is not required if the court has determined at a hearing pursuant to section 17a-111b, or determines at trial on the petition, that such efforts are not required, . . ."
There is clear and convincing evidence that DCF has made reasonable efforts to locate the parent; and
There is clear and convincing evidence that DCF has made reasonable efforts to reunify the child with the parent, unless the court finds that the parent is unable or unwilling to benefit from reunification efforts.
No finding of reasonable efforts is required if the basis of the termination is parental consent, if the court determines, at a hearing on a motion under General Statutes § 17a-111b, that such efforts are not required, or if, as here, the court has approved a permanency plan other than reunification. On April 5, 2010, after these children had been in DCF custody for more than nine months DCF filed a motion to review permanency plan, as required by General Statutes § 46b-129(k)(1) and court rule, and that plan proposed terminating the parental rights of the respondents and adoption of the minor children. The respondent mother filed a timely objection on May 3, 2010, and, after an evidentiary hearing on June 3, 2010, the court, Dannehy, J., approved the permanency plan proposed by DCF. As it is unclear in the present case whether the petitioner relies on that approval, this court will consider reasonable efforts. With respect to the statutory element of reasonable efforts to locate and reunify required for termination pursuant to General Statutes § 17a-112(j)(1), the court finds by clear and convincing evidence as follows:
General Statutes Section 17a-112(i) provides as follows: "The Superior Court upon hearing and notice, as provided in sections 45a-716 and 45a-717, may grant a petition for termination of parental rights based on consent filed pursuant to this section if it finds that (1) upon clear and convincing evidence, the termination is in the best interest of the child, and (2) such parent has voluntarily and knowingly consented to termination of the parent's parental rights with respect to such child."
General Statutes Section 17a-111b provides, in pertinent part, as follows: "(a) The Commissioner of Children and Families shall make reasonable efforts to reunify a parent with a child unless the court (1) determines that such efforts are not required pursuant to subsection (b) of this section or subsection (j) of section 17a-112 . . . (b) The Commissioner of Children and Families or any other party may, at any time, file a motion with the court for a determination that reasonable efforts to reunify the parent with the child are not required . . . The court may determine that such efforts are not required if the court finds upon clear and convincing evidence that: (1) The parent has subjected the child to the following aggravated circumstances: (A) The child has been abandoned, as defined in subsection (j) of section 17a-112; . . ."
General Statutes Section 17a-111b provides, in pertinent part, as follows: "(a) The Commissioner of Children and Families shall make reasonable efforts to reunify a parent with a child unless the court . . . (2) has approved a permanency plan other than reunification pursuant to subsection (k) of section 46b-129."
General Statutes Section 46b-129(k) provides in pertinent part as follows:
(k)(i) Nine months after placement of the child or youth in the care and custody of the commissioner pursuant to a voluntary placement agreement, or removal of a child or youth pursuant to section 17a-101g or an order issued by a court of competent jurisdiction, whichever is earlier, the commissioner shall file a motion for review of a permanency plan . . . Any party seeking to oppose the commissioner's permanency plan . . . shall file a motion in opposition not later than thirty days after the filing of the commissioner's motion for review of the permanency plan, which motion shall include the reason therefor. A permanency hearing on any motion for review of the permanency plan shall be held not later than ninety days after the filing of such motion. The court shall hold evidentiary hearings in connection with any contested motion for review of the permanency plan. The commissioner shall have the burden of proving that the proposed permanency plan is in the best interests of the child or youth . . . The court shall provide notice to the child or youth, the parent or guardian of such child or youth, and any intervenor of the time and place of the court hearing on any such motion not less than fourteen days prior to such hearing.
(2) At a permanency hearing held in accordance with the provisions of subdivision (1) of this subsection, the court shall approve a permanency plan that is in the best interests of the child or youth and takes into consideration the child's or youth's need for permanency. The child's or youth's health and safety shall be of paramount concern in formulating such plan. Such permanency plan may include the goal of (A) revocation of commitment and reunification of the child or youth with the parent or guardian, with or without protective supervision; (B) transfer of guardianship; (C) long-term foster care with a relative licensed as a foster parent; (D) filing of termination of parental rights and adoption; or (E) another planned permanent living arrangement ordered by the court, provided the Commissioner of Children and Families has documented a compelling reason why it would not be in the best interest of the child or youth for the permanency plan to include the goals in subparagraphs (A) to (D), inclusive, of this subdivision. Such other planned permanent living arrangement may include, but not be limited to, placement of a child or youth in an independent living program or long term foster care with an identified foster parent.
(3) At a permanency hearing held in accordance with the provisions of subdivision (1) of this subsection, the court shall review the status of the child, the progress being made to implement the permanency plan, determine a timetable for attaining the permanency plan, determine the services to be provided to the parent if the court approves a permanency plan of reunification and the timetable for such services, and determine whether the commissioner has made reasonable efforts to achieve the permanency plan. The court may revoke commitment if a cause for commitment no longer exists and it is in the best interests of the child or youth . . .
Practice Book Section 35a-14(a) provides, in pertinent part, as follows: "Motions for review of the permanency plan and to maintain or revoke the commitment shall be filed nine months after the placement of the child or youth in the custody of the Commissioner of the Department of Children and Families pursuant to a voluntary placement agreement, or removal of a child or youth pursuant to General Statutes § 17a-101g or an order of a court of competent jurisdiction whichever is earlier."
1. Reasonable efforts to locate
DCF made reasonable efforts to locate all of the remaining named respondents. Tiquana W., Eric P., and Chris O. were all served with process in hand or at their usual places of abode. Tiquana W. and Eric P. appeared in the proceedings and Chris O. has refused to have anything to do with the case. On July 19, 2010, a DCF social worker spoke by telephone to Larry S., the respondent putative father of Trevor, but he denied knowing Tiquana W. or that he was Trevor's father and refused to provide his address or cooperate with DCF services. DCF obtained a court order for notice to him of these proceedings by publication. When DCF later obtained his address because of proceedings in other courts, he was served by abode service but never appeared. DCF social workers made repeated unsuccessful inquiries to the respondent mother as to the whereabouts of Charles F. and James W., both of whom she identified as possible fathers of Quirvontrey. In July 2009 Ms. W. told DCF that James W. lived at a certain address on Martin Street in Hartford, at the same location where she said that Chris O. resided; and she said that Charles F. lived somewhere on Lenox Street in Hartford, but that she was unsure of the exact address although she provided DCF with a telephone number that she claimed was his. Police officers went to the Martin Street address and were informed that a man who had lived there moved a couple of months previously. DCF published notices in the Hartford Courant to inform James W. of juvenile court proceedings involving Quirvontrey in July 2009, and to inform Charles F. in September 2009. In February 2010 DCF again made diligent efforts to locate James W. and Charles F. DCF also made reasonable efforts to identify any unidentified possible father of Quirvontrey by publishing a notice to John Doe in the Hartford Courant of the pendency of these proceedings.
2. Reasonable efforts to reunify a. Respondent mother Tiquana W.
The injuries to Quirvontrey were the primary reason the children were removed from Ms. W.'s custody. Although she has on occasion admitted causing those injuries, she has also continued to deny doing so. Upon their removal, DCF also learned that she had not taken Elijah or Quirvontrey for regular medical appointments, despite the facts that Elijah had a serious kidney disease that required regular medical monitoring and that Quirvontrey had continued to have a swollen arm that he did not use. She admitted to police that the April injuries to Quirvontrey occurred because she had become angry at the nine-month-old child because he would not stop crying, an explanation that was consistent with the description given by her young sister as to how those injuries were caused. Although Dr. Franklin, who conducted a psychological evaluation of Ms. W. in February 2010 and also an interactive assessment of her with her children, stated that he was not optimistic that she "could obtain a level of insight and judgment that would otherwise suggest that the children would not be placed in future harm if returned to her custody." He recommended individual and family counseling for her and clinical observation and supervision of her visitations with the children to determine if she was benefitting from the services being provided.
Thus, before these children could ever be returned to her custody, Ms. W. would need to learn how to control her anger and the importance of providing proper medical care to the children, and the specific steps ordered by the court on July 31, 2009, when the OTC for Elijah and Quirvontrey was sustained, on October 15, 2009, when the children were committed to DCF upon being adjudicated as neglected, and on November 12, 2009, when the OTC for Trevor was sustained, directed her to participate in individual and parenting counseling with the goals of understanding the stages of development and attending to the children's medical needs, addressing issues of physical abuse to the children, learning anger management skills, and addressing her own history of sexual abuse trauma.
Although DCF made repeated referrals for counseling, Ms. W. has refused to attend. She told Dr. Franklin and DCF staff that there was nothing wrong with her, that she did not need counseling, and that she did not believe in counseling. In November 2009, she told a DCF social worker that she did not need counseling to address her anger and that she had already resolved her anger issues. In November 2009, she completed 12 weeks of parenting classes at the Klingberg Family Centers to which DCF referred her, and thereafter DCF arranged for an individual from Behavioral Health Consulting Services to provide ongoing education and support to her and offer her feedback and insight on how to improve her parenting skills during her supervised weekly visits with the minor children.
From these facts and the totality of the evidence, the court finds by clear and convincing evidence that DCF made reasonable efforts to reunify the children with Ms. W. by offering her services that, if she had used and benefitted from their reasonable purpose, could have helped her remediate the reasons the children were removed from her custody. The petitioner has also proven by clear and convincing evidence that, by virtue of Ms. W.'s refusal to accept or participate in the essential service of individual counseling, she was unwilling to benefit from reasonable reunification efforts and services offered by DCF.
b. Respondent father Eric P.
The respondent father Eric P. denied being Elijah's father until paternity was confirmed in September 2009 by genetic testing. After that DCF brought Elijah to the prison to meet with him monthly until the court, Dannehy, J., granted a motion from the child's attorney in April 2010 to suspend those visits. The evidence showed that Elijah did not recognize his father as someone important during those visits and displayed almost no interaction with Mr. P. during the visits. The visits were upsetting to Elijah and when it came time to transport him to a visit he had begun crying, refusing to get in the car, and refusing to go with his father once the visit began. On these and the other facts established, the court finds by clear and convincing evidence that DCF made reasonable efforts to reunite Elijah with Mr. P.
c. Respondent fathers Chris O. and Larry S.
As both Chris O. and Larry S. denied to DCF that they were a father to one of the respondent mother's children and refused to participate in this proceeding or to cooperate with DCF, clear and convincing evidence shows that they were unwilling to benefit from reunification efforts.
d. Respondent fathers James W and Charles F.
Since DCF was unable to locate either of these respondents after diligent searches to do so, the clear and convincing evidence establishes that they were unable to benefit from reunification efforts.
C Statutory Grounds for Termination
The petitioner has asserted numerous grounds to terminate the respondents' parental rights. Each statutory basis set forth in § 17a-112(j)(3) is an independent ground for termination. In re Baby Girl B., 224 Conn. 263, 293, 618 A.2d 1 (1992). To prevail in a non-consensual termination of parental rights case, DCF must prove at least one of these statutory grounds for termination by clear and convincing evidence. See In re Michael B., 49 Conn.App. 510, 512, 714 A.2d 1279, cert. denied, 247 Conn. 919, 722 A.2d 807 (1998). Only one ground need be established, however, for the granting of a TPR petition. In re Juvenile Appeal (84-BC), 194 Conn. 252, 258, 479 A.2d 1204 (1984).
As to the respondent mother, the grounds for termination are (i) her failure to rehabilitate, as to all her children, pursuant to General Statutes Section 17a-112(j)(3)(B); (ii) that Quirvontrey "has been denied, by reason of an act or acts of parental commission or omission, including but not limited to . . . severe physical abuse or a pattern of abuse . . . the care, guidance or control necessary for [his] physical, educational, moral or emotional well-being," pursuant to General Statutes § 17a-112(j)(3)(C); and (iii), as to Elijah and Trevor, that she committed an assault, through a deliberate, nonaccidental act, that resulted in serious bodily injury of another of her children, pursuant to General Statutes § 17a-112(j)(3)(F).
General Statutes Section 17a-112(j)(3)(B) provides as follows:
"The Superior Court . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence . . . that . . . (3) . . . (B) the child (i) has been found by the Superior Court or the Probate Court to have been neglected or uncared for in a prior proceeding, or (ii) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child; . . ."
General Statutes Section 17a-112(j)(3)(C) provides as follows:
"(j) The Superior Court, . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that . . . (3) . . . (C) the child has been denied, by reason of an act or acts of parental commission or omission including, but not limited to, sexual molestation or exploitation, severe physical abuse or a pattern of abuse, the care, guidance or control necessary for the child's physical, educational, moral or emotional well-being, except that nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights; . . ."
General Statutes Section 17a-112(j)(3)(F) provides as follows:
"(j) The Superior Court, . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that . . . (3) . . . (F) the parent has killed through deliberate, nonaccidental act another child of the parent or has requested, commanded, importuned, attempted, conspired or solicited such killing or has committed an assault, through deliberate, nonaccidental act that resulted in serious bodily injury of another child of the parent . . ."
As to all respondent fathers, the petitioner has alleged that all of them have abandoned their child, pursuant to General Statutes § 17-112(j)(3)(A) and that none of them has an on-going parent-child relationship with his child, pursuant to General Statutes Section 17a-112(j)(3)(D). As to Eric P., the department also alleges that he has failed to rehabilitate himself. As to the three putative respondent fathers of Quirvontrey, James W., Charles F., and Chris O., the department also alleges that the child was denied proper care by acts of parental commission or omission that caused the nonaccidental or inadequately explained serious physical injury to him, pursuant to § 17a-112(j)(3)(C).
General Statutes Section 17a-112(j)(3)(A) provides as follows:
"(j) The Superior Court . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that . . . (3)(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; . . ."
General Statutes Section 17a-112(j)(3)(D) provides as follows:
"(j) The Superior Court . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that . . . (3) . . . (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; . . ."
In the present case, the petitioner filed the petitions to terminate the parental rights of all the named respondents except Larry S. (and John Doe) on March 10, 2010. An amended TPR petition as to Trevor was filed on January 4, 2011, naming Larry S. and John Doe as respondent fathers. Under Practice Book § 35a-7(a), in the adjudicatory phase of the proceeding, "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." See In re Anthony H., 104 Conn.App. 744, 757, 936 A.2d 638 (2007), cert. denied, 285 Conn. 920, 943 A.2d 1100 (2008). Where the ground alleged involves failure to rehabilitate under § 17a-112(j)(3)(B) or (E), however, as here, "[i]n 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." In re Jennifer W., 75 Conn.App. 485, 495, 816 A.2d 697, cert. denied 263 Conn. 917, 821 A.2d 770 (2003); see also In re Joseph L., 105 Conn.App. 515, 527, 939 A.2d 16 (2008), and In re Stanley D., 61 Conn.App. 224, 230, 763 A.2d 83 (2000). In the adjudicatory phase of this proceeding, the court has considered the evidence related to circumstances and events prior to the adjudicatory date, insofar as the allegations pertaining to abandonment, no ongoing parent-child relationship, denial of proper care, and abuse of another child are concerned. With regard to the allegations of failure to achieve rehabilitation, the court has also considered the evidence and testimony related to circumstances occurring through the close of evidence in March 2011 on 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.
1. Abandonment — § 17a-112(j)(3)(A)
The petitioner has asserted, as a statutory ground for termination of parental rights, that each respondent father had, as of the pertinent adjudicatory date, abandoned his minor child. "In adjudicating a petition to terminate parental rights on the ground of abandonment, the court's focus is on the parent's conduct." In Re Jaime S., 120 Conn.App. 712, 994 A.2d 233 (2010).
A lack of interest in the child is not the sole criterion in determining abandonment . . . General Statutes [Rev. to 1995] § 17a-112(b)(1) [now § 17a-112(j)(3)(A)] defines abandonment as the [failure] 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 . . .
In re Kezia M., 33 Conn.App. 12, 17-18, 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993).
The statute requires DCF to show by clear and convincing evidence that a parent has failed to maintain a reasonable degree of interest in the welfare of his or her child. "Maintain implies a continuing, reasonable degree of concern," "not . . . a sporadic showing of the indicia of interest, concern or responsibility for the welfare of a child." 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 . . ." (Citation omitted; internal quotation marks omitted.) Id.
The court finds by clear and convincing evidence that as of the relevant adjudicatory date each respondent father had abandoned his child within the meaning of § 17a-112(j)(3)(A). None of them had met the duty of supplying his child with financial support, an adequate domicile, necessary food, clothing, and medical care. None of them had attempted to provide his child with social or religious guidance. None of them provided DCF with cards, letters or gifts for his child. Chris O. denied to DCF that he was Quirvontrey's father; Larry S. denied to DCF that he was Trevor's father; and both men refused to participate in this proceeding or to cooperate with DCF and failed to show or maintain any interest, concern, or responsibility for either of their children. The respondent fathers James W. and Charles F. have never shown any interest, concern or responsibility with regard to Quirvontrey.
2. No ongoing parent-child relationship — § 17a-112(j)(3)(D)
A second statutory basis alleged by the petitioner for terminating the parental rights of Eric P. to Elijah, Larry S. to Trevor, and James W., Chris O., and Charles F. to Quirvontrey is that, as of the relevant adjudicatory date, none of them had an ongoing parent-child relationship within the meaning of General Statutes § 17a-112(j)(3)(D). The statute defines an "ongoing parent-child relationship" as meaning "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.) In re Jonathan G., 63 Conn.App. 516, 525, 777 A.2d 795 (2001). The term "`no ongoing parent-child relationship' . . . contemplate[s] a situation in which, regardless of fault, a child either has never known his or her parents, so that no relationship has ever developed between them, or has definitively lost that relationship, so that despite its former existence it has now been completely displaced. In either case the ultimate question is whether the child has no present memories or feelings for the natural parent." (Internal quotation marks omitted.) In re Juvenile Appeal (Anonymous), 177 Conn. 648, 670, 420 A.2d 875 (1979); In re Juvenile Appeal, (Anonymous), 181 Conn. 638, 645-46, 436 A.2d 290 (1980); In re John G., 56 Conn.App. 12, 23, 740 A.2d 496 (1999). In the case of a very young child, whose feelings are not readily discernible, "the inquiry must focus, not on the feelings of the infant, but on the positive feelings of the natural parent." In re Valerie D., 223 Conn. 492, 532, 613 A.2d 748 (1991).
To satisfy the second prong of the statutory criteria, the court must determine whether it would be in the child's best interest to allow additional time for the establishment of a parent-child relationship. The "best interest" standard, therefore, does not become relevant until after it has been determined that no ongoing parent-child relationship exists.
The factors to be considered in deciding whether it would be in Kezia's best interest to permit further time for a relationship with her father to develop include (1) the length of stay with her foster parents, (2) the nature of her relationship to her foster parents, (3) the degree of contact maintained with the natural parent, and (4) the nature of her relationship to her natural parent. In addition, the genetic bond shared by a biological parent and his or her child, although not determinative of the issue of the best interest of the child, is certainly a factor to consider.
(Citations omitted.) In re Kezia M., supra, 33 Conn.App. 22.
a. Eric P. and Elijah
The visitations between Eric P. and Elijah were suspended after those visits were causing such distress to the child that Elijah was crying beforehand and refusing to interact with Mr. P. during the visitations. At his first visit with Elijah, on October 21, 2009, the child did not speak or look at him and kept trying to hide under the social worker's arm. At his last visit on February 16, 2010, Elijah did not want to leave his foster home, cried and refused to get in his car seat, and refused to go with his father after arriving at the correctional institution. Although the social worker who brought Elijah to the visits and supervised them noted that Mr. P. made efforts to engage with Elijah, he was unsuccessful in doing so. In February 2010, Dr. Franklin conducted a court-ordered assessment of Mr. P.'s interactions with Elijah, and the court finds his observations, conclusions and opinions to be credible and probative. He
found no overt evidence to indicate that either father or child had an affective connection with each other.
. . .
As the interview progress[ed], both father and child appeared to become more comfortable in each other's presence. Notwithstanding, the interview never progressed beyond father and son engaging in what can best be described as parallel play, that is, each involved in a task separate from the other with marginal verbal interaction.
Based upon the interview, which should be viewed as a snapshot in time, it is the opinion of the examiner that Mr. [P.] appears to have little basic competencies as "active" parent nor does Elijah appear to have an emotional connection with Mr. [P.] typically observed between father and child.
E-19. The evidence shows clearly and convincingly that on the adjudicatory date there was no ongoing parent-child relationship between Eric P. and Elijah, within the meaning of the statute as construed by our courts.
In view of the fact that upon his release from incarceration Mr. P. maintained absolutely no contact with the department, moreover, it would also be futile to permit additional time to allow an ongoing parent-child relationship to begin and develop. Elijah has been in foster care for almost two years. As Judge Keller aptly noted in a recent TPR case,
The federal Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. § 670 et seq. as amended, and General Statutes § 46b-129(k)(1) mandate that after 12 months in foster care, a child must have a plan for a permanent home. Our supreme court has noted consistently the importance of permanency in children's lives. Virtually all experts, from many different professional disciplines, agree that children need and benefit from continuous, stable home environments. Foster care should be a strictly limited episode in the life of a child.
(Citations omitted; internal quotations omitted.) In Re Genesis H., Superior Court, judicial district of Hartford, Juvenile Matters at Hartford, docket no. H12-CP09-012773-A (January 11, 2011). Elijah has a close bond with his foster parents, who want to adopt him and his brothers. Allowing further time for the establishment or reestablishment of a parent-child relationship would be detrimental to his best interest. The court thus finds that the petitioner has established this ground as a basis for terminating Mr. P.'s parental rights to Elijah by clear and convincing evidence.
b. Larry S. to Trevor
Trevor has been in DCF custody since shortly after his birth. Never having seen his father, there obviously was and is no ongoing parent-child relationship between them, either on the adjudicatory date or now. Ordinarily, however, a court must shy away from terminating parental rights on the basis of no ongoing parent-child relationship when the child was removed from parental custody at birth. See In re Valerie D., supra, 223 Conn. 531. As our Supreme Court cogently explained in that case:
once the child had been placed in foster care pursuant to the determinations made under 46b-129, a finding of a lack of an ongoing parent-child relationship three and one-half months later was inevitable . . . because absent extraordinary and heroic efforts by the respondent, the petitioner was destined to have established the absence of such a relationship. Thus, a factual predicate for custody, established by the lesser standard of a preponderance of the evidence, led inexorably, for all practical purposes, to the factual predicate for termination required to be established by the higher standard of clear and convincing evidence. We do not believe it would be consistent to read the two statutes together so as to contemplate such a scenario.
Id., 533-34. In the Valerie D. case, "the lack of an ongoing parent-child relationship between the respondent and the child was the direct result of the fact that the child was in foster care apart from the respondent for almost the entire period of time between the birth and the adjudication date." Id., 530. The court there thus concluded that in a case involving a young child removed at birth, when the circumstances of removal effectively prevent parent and child from having an opportunity to develop a relationship, the court must focus "on the positive feelings of the natural parent." Id., 532.
That logic makes sense, however, only for a parent who has expressed some, however little, desire in having a parent-child relationship, and such is not the case here. When a DCF social worker spoke by telephone to Larry S. on July 19, 2010, Mr. S. denied knowing Tiquana W. or that he was Trevor's father and he refused to provide his address or cooperate with DCF services. Thereafter, he had no contact with the department and made no attempts to develop any relationship with Trevor. He has no positive feelings toward Trevor, has disavowed any opportunity to develop a relationship with the child, and has expressed his affirmative desire not to be regarded as Trevor's father. In Valerie D., it was "the petitioner's assertion and maintenance of custody of the child [that] led directly to the conditions supporting the termination of parental rights under [§ 17a-112(j)(3)(D)]"; id., 535, and the court held that due process of law prevents the state from "creat[ing] the conditions that will strip an individual of an interest [parental rights to a child protected under the due process clause." Id., 534. Under the circumstances here, however, the fiat of Valerie D. is not applicable, for it was not Trevor's removal from parental custody that prevented a parent-child relationship from developing, but Mr. S.'s own attitude and lack of desire to play any part in Trevor's life.
"[T]he respondent has an important, constitutionally protected interest in preserving his parental rights." In re Baby Girl B., 224 Conn. 263, 279, 618 A.2d 1 (1992) ("the interest of parents in their children is a fundamental constitutional right that undeniably warrants deference and, absent a powerful countervailing interest, protection" and terminating legal relationship between parent and child is "a most serious and sensitive judicial action"); In re Juvenile Appeal (Docket No. 10155), 187 Conn. 431, 436, 446 A.2d 808 (1982) ("the respondent's interest in retaining his parental rights to his son, is clearly both compelling and constitutionally protected"). In Re Lukas K., 300 Conn. 463, 470 (2011)).
It would be detrimental to Trevor's best interest, moreover, to wait for Mr. S. to change his mind and then spend time establishing a relationship with this child, who has already been out of parental care for close to two years and has a close bond with foster parents who meet his needs and want to adopt him. The court thus finds that the petitioner has established this ground as a basis for terminating the parental rights of Mr. S. to Trevor by clear and convincing evidence: no parent-child relationship exists, and it would be detrimental to Trevor's best interest to allow time for such a relationship to develop.
c. James W., Chris O., and Charles F. to Quirvontrey
None of these putative fathers had an ongoing parent-child relationship with Quirvontrey as of the relevant adjudicatory date. After Ms. W. named Chris O. as a possible father of Quirvontrey, a DCF social worker made various unsuccessful efforts to locate him, but in February 2010 did obtain his telephone number and a DCF social worker spoke to him by telephone on the fourth day of that month. He denied he was Quirvontrey's father but said that he would agree to paternity testing, but he thereafter refused to cooperate with DCF. Although he was served with process, he did not appear. Under these circumstances, he and the child have no positive feelings toward each other. Moreover, under the circumstances of this case as recounted elsewhere, it would be detrimental to Quirvontrey's best interest to wait for a change of heart on his part and then allow yet further time for a parent-child relationship to develop.
There was no ongoing parent-child relationship between Quirvontrey and James W. or Charles F. as of the adjudicatory date, and it would be detrimental to the child's relationship to allow time for such a relationship to develop. Since this proceeding began, they have not sought any contact with the child.
The court thus finds that this ground for terminating the parental rights of Chris O., James W., and Charles F. has been proven by clear and convincing evidence.
3. Denied proper care — § 17a-112(j)(3)(C)
There is absolutely no doubt that the respondent mother caused severe physical injuries to Quirvontrey by nonaccidental means, as described above. Under General Statutes § 17a-112(j)(3)(C), "[n]onaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights . . ." "[W]here termination is based on a claim of serious physical injury, two criteria must be met to establish prima facie evidence for termination of parental rights: the physical injury must be serious and it must be nonaccidental or inadequately explained." In re Jessica M., 49 Conn.App. 229, 241 (1998), appeal dismissed, 250 Conn. 747, 749 (1999). In the absence of a statutory definition of "serious physical injury," the Appellate Court reasoned that it must entail something more than a showing of abuse or neglect given that the definitions for those terms "use only the words physical injury or injuries not serious physical injury." Id., 242.
The petitioner proved by clear and convincing evidence that in April 2009 Ms. W. deliberately and nonaccidentally threw Quirvontrey by his arms into a playpen in such a manner as to cause severe physical injury. Although she did take Quirvontrey to the hospital in April, she ignored the hospital's instructions to return if the problems persisted, which they did. Quirvontrey's arms remained swollen and the child continued not to use one of his arms for weeks and months thereafter. Ms. W.'s failure to obtain proper medical treatment for these injuries after her initial hospital visit constituted an act of parental omission that denied Quirvontrey the care, guidance and control necessary for his well-being. There were other fractures occurring at other times while Quirvontrey was in her custody that were not adequately explained, and these also constituted serious physical injury to Quirvontrey.
In In re Rachel J., 97 Conn.App. 748, 759-60, 905 A.2d 1271, cert. denied, 280 Conn. 941, 912 A.2d 476 (2006), a child's fractured arm caused by a parent throwing the child to the ground and the attendant pain and swelling experienced by the child were found to constitute serious physical injury within the meaning of § 17a-112(j)(3)(F), which, like § 17a-112(j)(3)(C), requires serious physical injury. Id., 758-59. Here, the physicians who examined Quirvontrey noted that the injuries causing his multiple fractures would have been painful. His arm was swollen and he was unable to use the arm for a long time, and doctors treating him were worried that it might be a lifetime disability. His arm was swollen and he was unable to use the arm for a long time, and doctors treating him were worried that it might be a lifetime disability. Clear and convincing evidence thus establishes that Quirvontrey "has been denied, by reason of an act or acts of parental commission or omission, including but not limited to . . . severe physical abuse or a pattern of abuse . . . the care, guidance or control necessary for [his] physical, educational, moral or emotional well-being," as set forth in General Statutes § 17a-112(j)(3)(C).
Despite the default, the court declines to find that the petitioner has established this ground by clear and convincing evidence as to Quirvontrey's putative respondent fathers, Chris O., James W., and Charles F.
4. Assault causing serious physical injury to another child — § 17a-112(j)(3)(F)
General Statutes § 17a-112(j)(3)(F) authorizes termination of parental rights if a parent has committed an assault by a deliberate, nonaccidental act that resulted in serious bodily injury of another child of the parent. The petitioner has alleged this ground to terminate Ms. W.'s parental rights to Elijah and Trevor based on her inflicting serious physical injuries on Quirvontrey as described above. In In re Rachel J., supra, 97 Conn.App. 748, the court upheld the termination of parental rights on this ground where the evidence showed, similar to here, that a parent had thrown a child in such a manner as to break the child's arm. Similarly, in In Re Clark K., 70 Conn.App. 665, 676-77, 799 A.2d 1099 (2002), the court held that "[t]he respondent's statement to the police that she deliberately slammed C's brother's head against the floor, which resulted in fractures of the skull would allow the court to conclude by clear and convincing evidence that the respondent committed an assault on C's brother resulting in serious bodily injury." Clear and convincing evidence thus establishes that Ms. W. committed an assault, through a deliberate, nonaccidental act that resulted in serious bodily injury to Quirvontrey. Under these and the other circumstances established by the evidence, the petitioner has proven this ground by clear and convincing evidence for termination of her parental rights to her other two children, Elijah and Trevor.
5. Failure to Rehabilitate — § 17a-112(j)(3)(B)
General Statutes Section 17a-112(j)(3)(B) authorizes terminating parental rights to a child previously found to have been neglected or uncared for if the parent fails to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, the parent could assume a reasonable position in the life of that child. The neglect statute, § 46b-129(n) also requires that a parent of a child committed to DCF after an adjudication of neglect be provided with "specific steps to take to facilitate the return of the child . . ." See In re Justice V., 111 Conn.App. 500, 507, 959 A.2d 1063 (2008), cert. denied, 290 Conn. 911, 964 A.2d 545 (2009) (stating that specific steps "give the parent fair warning of what is required to be reunited with the child").
General Statutes Section 46b-129(j) provides in pertinent part as follows:
"Upon finding and adjudging that any child or youth is uncared-for, neglected or dependent, the court may commit such child or youth to the Commissioner of Children and Families . . . The court shall order specific steps that the parent must take to facilitate the return of the child or youth to the custody of such parent . . ."
The petitions filed in this case by DCF used the standard form JD-JM-40 and specifically pleaded, as an adjudicatory ground for terminating the parental rights of Ms. W. to all her children, and of Mr. P. to Elijah, that "the child or youth has been found in a prior proceeding to have been neglected and uncared for and [the respondent] has/have failed to achieve the degree of personal rehabilitation that would encourage the belief that within a reasonable time, considering the age and needs of the child or youth, he/she/they could assume a responsible position in the life of the child or youth; . . ." Form JD-JD-40 states as a separate adjudicatory basis that the child or youth had been in DCF custody for 15 months, the parent had been given specific steps to facilitate return of the child, and the parent had failed to achieve a sufficient degree of rehabilitation. The form thus treats § 17a-112(j)(3)(B) as establishing two separate adjudicatory grounds, one under (B)(i) that does not require issuance of specific steps and the other under (B)(ii) that does. This court is not aware of any appellate decision expressly addressing such a distinction but a strong case supporting such treatment was made by the court in In Re Nicholas G.V., Superior Court, judicial district of Middlesex, child protection session at Middletown, docket no. D03-CP07-002405-A (May 21, 2009) (Bear, J.). In view of the fact that this issue was not raised here and this court has thus not had the benefit of argument of counsel, this court will treat the statute here as requiring the provision of specific steps for either component of § 17a-112(j)(3)(B).
Personal rehabilitation as used in [§ 17a-112] refers to the restoration of a parent to his or her former constructive and useful role as a parent . . . [The statute] requires the trial court to analyze the [parent's] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time . . . [The statute] requires the court to find, by clear and convincing evidence, that the level of rehabilitation she has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date she can assume a responsible position in her child's life." (Citations omitted; internal quotation marks omitted.) In re Eden F., 250 Conn. 674, 706, 741 A.2d 873, reargument denied, 251 Conn. 924, 742 A.2d 364 (1999). "[I]n assessing rehabilitation, the critical issue is not whether the parent has improved [her] ability to manage [her] own life, but rather whether [she] has gained the ability to care for the particular needs of the child at issue." (Internal quotation marks omitted.) In re Amneris P., 66 Conn.App. 371, 384, 784 A.2d 457 (2001). "Terminating a parent's rights is not ordered to punish a parent who has not tried to rehabilitate; it is ordered so as not to punish a child by denying [the child] a safe permanent home with proven competent caretakers because [the] biological mother has tried hard but continues to be incapable of providing such a home for [the child]." In re Samantha B., 45 Conn.Sup. 468, 477, 722 A.2d 300 (1997), aff'd, 51 Conn.App. 376, 721 A.2d 1255 (1998), cert. denied, 248 Conn. 902, 732 A.2d 177 (1999).
In Re Joseph W., 121 Conn.App. 605, 997 A.2d 512 (2010). "What is a reasonable time is a factual determination that must be made on a case-by-case basis," depending on the age and needs of the particular child. In re Shannon S., 41 Conn.Sup. 145, 154, 562 A.2d 79, aff'd, 19 Conn.App. 20, 560 A.2d 993 (1989). The court must thus determine whether the petitioner has proven, by clear and convincing evidence, that Ms. W. and Mr. P., after having been provided with specific steps following adjudications that their child or children had been neglected, had failed, as of the relevant adjudicatory date and the close of evidence, to achieve the required degree of personal rehabilitation.
On October 15, 2009, Elijah and Quirvontrey were found to have been neglected and committed to the Commissioner of DCF, in whose care they have remained to this date. The court issued specific steps to the respondent parents, Tiquana W. and Eric P., on that same date, and copies of those steps were entered into evidence as exhibits in this proceeding. Trevor was not born until fifteen days later, after which an order of temporary custody was obtained and a neglect petition brought on his behalf. On January 19, 2010, Trevor was adjudicated to be neglected, and the memoranda of hearing indicate that preliminary steps were reviewed, approved and ordered by the court, Keller, J., at the OTC hearing on November 13, 2009, and then reviewed, approved and ordered as final steps by the court, Dannehy, J., on January 19, 2010. Copies of the specific steps entered to facilitate the mother's reunification with Trevor were not introduced into evidence, but there was other evidence offered as to those steps in the various exhibits submitted by DCF.
a. Respondent mother
The specific steps ordered Ms. W. to participate in parenting and individual counseling and make progress toward treatment goals that were identified as understanding the stages of a child's development, addressing issues of physical abuse and anger management, and addressing her own sexual abuse trauma. Sh did complete a 12-week parenting program, and after that DCF provided a supervision monitor to offer her insight and to help her develop proper parenting skills during her weekly visitations with her children. But she consistently refused to accept, participate in, or benefit from individual counseling.
Although Dr. Franklin observed that Ms. W. was loving and appropriate with the children during his assessment of their interactions in February 2010, that observation is contradicted by the remainder of the evidence, which establishes clearly and convincingly that as of March 15, 2010, she had not rehabilitated herself to the point that she was ready to resume caring for the children. His written evaluation acknowledges that his observations were tempered by the fact that he had viewed her interacting with the children for only a short period. Similarly, there were occasions on which the supervision monitor, Pamela St. John, noted that Ms. W. had acted appropriately during a visitation. But Dr. Franklin's evaluation noted that Ms. W. "presents with considerable difficulties in modulating anger due to what can best be described as poor frustration tolerance. In the past, this has resulted in spontaneous physical assault on Quirvontrey," and he regarded her prognosis as poor. As of March 15, 2010, Ms. W. was often still denying having caused the injuries to Quirvontrey and had shown no remorse for having done so. She was refusing to engage in counseling that Dr. Franklin believed was necessary and that had been ordered by the specific steps. Moreover, Dr. Franklin concluded that Elijah will need ongoing psychological services, and Ms. W.'s expressed belief that counseling does no good shows she would not be willing to meet this need of her oldest child. She was too rough with Quirvontrey on one of her visits. She was often unable to demonstrate nurturing interactions with the children. Despite the fact that the fractures to Quirvontrey had been caused by injuries on several occasions, on at least one of which directly by her own violent behavior, she showed no insight that her behavior, her supervision of the children, and her failure to provide adequate medical care had been harmful to them or that she had done anything wrong; instead, she maintained, falsely, that she had been told by Hartford Behavioral Health Services that there was nothing wrong with her and she needed no counseling. The fact that she was able to interact appropriately on a few individual occasions, whether in front of Dr. Franklin or Ms. St. John, did nothing to dispel her overall failure to address the issues that caused her on other occasions to lose control and injure her children. Her inability to resume care of the children by not having rehabilitated herself sufficiently continued to be true on the date of the filing of the amended petition for Trevor on January 4, 2011.
The failure to rehabilitate ground for a TPR petition also requires a court to look forward, after the adjudicatory date, to 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. On this issue, the evidence as to Ms. W.'s visitations with the children shows clearly and convincingly not just that she has not benefitted from the services DCF offered her, but also that she has not achieved such a degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of each child, she could assume a reasonable position in the life of that child.
Pamela St. John, the supervision monitor from BHCS, testified credibly that she has repeatedly seen Ms. W. acting unsafely and too roughly with the children and testified credibly that she has serious concerns about safety issues with Ms. W. She needs to be encouraged to redirect her children rather than simply telling them what to do and expecting them to obey her commands. She instigates and models rough play with the boys, which in turn leads them to behave aggressively. Examples of times that Ms. W. acted inappropriately with the children during the visitations include the following:
On at least three occasions, despite knowing how to, she did not buckle Trevor adequately into his car safety seat at the conclusion of visit and then attempted to conceal that fact by covering him up in a way that would indicate he was ready to go.
During an August 2010 visitation, Ms. W. was sitting on the floor when pills containing a controlled substance, codeine, fell from her pocket onto the floor. Baby Trevor, then less than a year old, was crawling around on the floor and picked up one of the pills. Only after Ms. St. John directed Ms. W.'s attention to the matter did the respondent mother notice that the pills were on the floor or that Trevor had one. She removed the pill from the baby, picked up the other pills, and put the pills loose into the pocket of a jacket that she later used to cover the baby. She tried to conceal the fact that the pills contained a controlled substance by telling St. John that they were aspirin. As they were leaving the visitation, Ms. W. informed Ms. St. John that two of the pills appeared to be missing and that they contained codeine. Fortunately, she then found the other two pills, but the incident shows her lack of attention to the children and lack of awareness of dangers to their safety.
During that same visitation, when Ms. W. was holding Trevor, Ms. St. John asked her what was on the baby's pants bottom, and the respondent mother then grabbed Trevor so roughly and abruptly to turn him over as to startle the baby, who then cried vigorously until he fell sleep. Ms. W. was not aware of how her actions had affected the baby.
Another time she left the Elijah sitting on a high window sill without paying attention to him and another time she left Elijah on a table and walked away.
On one occasion she gave baby Trevor half a hot dog to eat and walked away; another time she let Trevor walk around the visitation room with a whole, uncut Vienna Sausage and looked surprised and "put out" when Ms. St. John explained to her that the baby could choke on the sausages unless they were cut up. On another occasion, she brought the children fried fish and grits that had been unrefrigerated for six hours. Although Ms. St. John told her about that bacteria can grow in food that has been unrefrigerated for six hours, the next week Ms. W. brought a cooked tuna casserole made six hours earlier and that was at room temperature.
On various other occasions she was also unable to comfort the children when crying or distressed. At one of her most recent visits, baby Trevor was sleeping upon arrival because it was his nap time. Ms. W. removed him from the carriage and spoke loudly to him, and he then began to cry and did not stop for almost an hour. She did not notice that he kept pulling on his left ear. Unaware of Trevor's discomfort, she bounced Trevor on her knee but was unable to comfort and quiet him. Ms. St. John then asked if Ms. W. would like her to hold Trevor so that she could play with Elijah; she agreed and gave Trevor to Ms. St. John, who rocked the baby to sleep. She then tried to play a game with Elijah but did not notice that instead of having fun Elijah looked and sounded stressed and that she was scaring him.
CT Page 9319
Less than two months ago, she was again unable to comfort the crying baby and told Trevor that if he kept crying she would place him in the hallway by himself. Although Trevor was too young to understand this threat, "Elijah looked frightened and upset, which his mother did not even notice." (A-26.)
From these and other observations of her interactions with her children during her supervised visitations that were reported in the evidence, the court finds credible the observations of the supervision monitor and resulting opinion of the DCF social worker that, despite having completed the parenting education classes and being provided one-on-one parenting assistance during the visitations, Ms. W. "has been unable to demonstrate new knowledge and skills during her visits with her children."
Her refusal to participate in individual counseling and her expressed belief that counseling is ineffective demonstrate that she will never be willing, absent an unforeseeable change of mind, to address the inner issues that led her to become so angry at a crying infant that she threw Quirvontrey by his arms into a playpen so roughly as to injure the child Quirvontrey's arm. She has continued to interact with the children too roughly during her visitations. Her lack of remorse or insight about her responsibility for the injuries caused to Quirvontrey is critical in this case. Her rough treatment of the children during visits and her lack of attention to their safety must be viewed through the lens of that prior abuse to Quirvontrey. She has not learned that these little children need to be protected, and she shows no signs of ever being willing to learn that fact. The petitioner has thus proven, by clear and convincing evidence, that after having been provided with specific steps, Ms. W. had failed, as of the relevant adjudicatory date or the close of evidence, to achieve the required degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of her three children, she could assume a responsible position in their lives.
b. Respondent Eric P. to Elijah
The specific steps ordered for Eric P. directed him to cooperate with services offered by the department of corrections. Very little evidence was provided about Mr. P., however, other than a summary of his criminal record, which showed felony convictions for arson in the second degree, sale of hallucinogens or narcotics, and carrying a pistol without a permit. He did participate in a domestic violence program while in prison because correctional authorities required him to do so as a condition of being considered for early release. There were substance abuse programs available in prison, but he did not attend any of them. On the sparse evidence offered, and despite the default entered against Eric P., the court is unable to find by clear and convincing evidence that he failed to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, he could assume a responsible position in the life of that child.
D Summary
The adjudicatory grounds thus found to have been established by clear and convincing evidence are as follows:
(a) Respondent mother: failure to rehabilitate as to all three children, pursuant to General Statutes § 17a-112(j)(3)(B); denied proper care as to Quirvontrey, pursuant to General Statutes § 17a-112(j)(3)(C); and serious non-accidental injury to another child, as to Elijah and Trevor, pursuant to General Statutes § 17a-112(j)(3)(F).
(b) Respondent father Eric P. as to Elijah: abandonment, pursuant to General Statutes § 17a-112(j)(3)(A), and no ongoing parent-child relationship, General Statutes § 17a-112(j)(3)(D).
(c) Respondent Larry S. as to Trevor: abandonment, pursuant to General Statutes § 17a-112(j)(3)(A), and no ongoing parent-child relationship, General Statutes § 17a-112(j)(3)(D); and
(d) Respondents James W., Chris O., and Charles F. as to Quirvontrey: abandonment, pursuant to General Statutes § 17a-112(j)(3)(A), and no ongoing parent-child relationship, General Statutes § 17a-112(j)(3)(D).
III DISPOSITION
"A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition . . . If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interest of the child." (Citation omitted; internal quotation marks omitted.) In re Roshawn R., 51 Conn.App. 44, 52, 720 A.2d 1112 (1998). Unlike the adjudicatory phase, on disposition the court may consider information through the close of the evidentiary hearing. In the dispositional phase of this case the court has considered the evidence and testimony related to circumstances and events up to and including March 15, 2011, the date upon which the evidence in this matter was concluded.
A Required Statutory Findings
In making the dispositional decision in a non-consensual case, "the court is mandated to consider and make written findings regarding seven factors" specified in General Statutes § 17a-112(k). See, e.g., In re Tabitha P., 39 Conn.App. 353, 664 A.2d 1168 (1995). "[T]hose `seven factors serve simply as guidelines for the court and are not statutory prerequisites that need to be proven before termination can be ordered . . . There is no requirement that each factor be proven by clear and convincing evidence.'" In re Davonta V., 98 Conn.App. 46-47 (2009). As required by the statute, the court has considered the statutory factors and makes the following written findings, which the court has considered in determining whether it is the best interest of each of these children to terminate the parental rights of the respondent parents. In re Quanitra M., 60 Conn.App. 96, 758 A.2d 863, cert. denied, 255 Conn. 903, 762 A.2d 909 (2000).
General Statutes Section 17a-112(k) provides as follows: "Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended; (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (4) the feelings and emotional ties of the child with respect to the child's parents, any guardian of such child's person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (5) the age of the child; (6) the efforts the parent has made to adjust such parent's circumstances, conduct, or conditions to make it in the best interest of the child to return such child home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions, and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent."
DCF offered Ms. W., and referred her to, individual and parenting counseling intended to facilitate her reunion with her children. After she completed parenting classes, DCF also provided individual supervision and monitoring of her visits with her children, which gave her an opportunity to receive feedback and instruction on how to improve her parenting skills and knowledge.
While he was incarcerated, Mr. P. participated in domestic violence programs offered by the department of corrections, but not substance abuse programs offered by the facility. A DCF social worker also accompanied Elijah on monthly visits to the prison where the social worker had the opportunity to provide him with instruction and feedback on his parenting skills and knowledge.
Larry S. and Chris O. refused to cooperate with DCF or accept reunification services.
Since DCF was unable to locate James W. and Charles F. after diligent searches to do so, DCF was unable to provide either of them with services to facilitate reunion with their child.
(2) Whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended — 17a-112(k)(2).The court finds that DCF made reasonable efforts to reunite the respondent mother with her children pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended. DCF was unable to make reasonable efforts to reunite Quirvontrey, Elijah, or Trevor with their fathers. Eric P. was in prison from the commencement of the underlying neglect proceeding until early this year, and did not contact DCF after his release, and DCF was thus unable to offer reunification services either while or after he was incarcerated. DCF was unable to offer reunification services to the two respondent fathers, Larry S. and Chris O., who refused to cooperate with DCF or to the two other respondent fathers, James W. and Charles F., as neither of them could be located.
(3) The terms of any court orders entered into and agreed upon by any individual or agency and the parent, and the extent to which the parties have fulfilled their expectations — § 17a-112(k)(3).The court ordered the respondent mother and the respondent father Eric P. to comply with the following orders to regain custody of their child or children.
Keep all appointments set by or with DCF. Cooperate with DCF home visits, announced or unannounced, and visits by the child(ren)'s court-appointed attorney and/or guardian ad litem.Ms. W. only partially complied with this requirement. She cancelled visits with the children on October 19, 2009, and January 20, 2010, and she did not make herself available for two scheduled home visits on October 28, 2009, and December 2, 2009. Beginning in the fall of 2010 she began missing more scheduled visits, including on September 15, 2010, November 5, 2010, December 20, 2010, and January 4, 2011. She also missed administrative case review meetings on August 20, 2010, and February 4, 2011. The DCF social worker sent her nine letters between August 26, 2010, and January 19, 2011, requesting that she contact the social worker, and one of those letters, dated January 6, 2011, stated that Ms. W. had spoken to the social worker two days earlier. This statement in that letter flatly contradicts other statements by that social worker in two exhibits dated February 24, 2011, that "since 8/20/2010, mother has not maintained contact with the Department." In view of this contradiction, the court does not find the social worker's blanket assertion in those exhibits of no contact by mother with DCF since August 2010 to be credible. The contents of the various letters do confirm as true, however, the social worker's statements in those exhibits that "Mother has been sent letters to come to the Department to meet with her worker and she has failed to do so." See exhibit I, Study in Support of Motion to Review Permanency Plan, dated February 24, 2011, and exhibit J, Addendum of the Social Study for the Termination of Parental Rights, dated February 24, 2011.
Eric P. made himself available for all the monthly visits with Elijah that DCF provided until they were suspended.
Keep whereabouts known to DCF and your attorney.
Ms. W. also initially complied with this step, but beginning in August 2010 she did not. Until then, DCF knew that she had been living with her own mother, then after November 2009 in her own apartment in East Hartford, and at some point after that she began living with her mother again. By August 2010, however, DCF did not know where she was living. Upon his release from incarceration Mr. P. did not keep his whereabouts known to DCF; whether he did to his attorney was not disclosed by the evidence.
Visit child(ren) as often as DCF permits and demonstrate appropriate parent/child interaction during visits.
DCF provided Ms. W. with weekly visitation with Elijah and Trevor, but, after her arrest in February 2010 for the injuries she caused to Quirvontrey, a criminal protective order was issued prohibiting her from having contact with him. On February 25, 2011, the court, Dyer, J., granted an ex parte motion from counsel for the minor visitation to suspend her visitations with Elijah and Trevor, pending trial of the TPR petition, based on allegations about the mother's conduct during recent visitations that were proven to be true during the trial of this matter. On March 15, 2011, this court continued that order until issuance of this memorandum of decision. Prior to suspension of visits, Ms. W. missed five of her scheduled visits with Elijah and Trevor, as noted above, and her behavior on these visits was frequently inappropriate toward the children. She was too rough with them sometimes, did not recognize cues in their behavior when they were unhappy with her, and sometimes placed them in jeopardy. One time, for example, she left one of them unattended on a high window sill. Another time, she did not notice that pills containing a controlled substance had fallen out of her pocket in the children's presence, and she then placed the pills back in the pocket of a jacket that she later used to cover the baby. At the beginning of the visit on February 14, 2011, as Ms. W. was getting ready to remove Trevor from a stroller, Trevor started crying, and as a result Ms. W. became angry and upset and "in a huff" pushed the stroller, with Trevor still inside, in the direction of a table. If the supervision monitor, Ms. St. John, had not stopped the stroller, Trevor would have hit the table face first. Nine days later, at another visit, Ms. W. intentionally spat directly into Elijah's face while talking to him. Other times she has tried to conceal the fact that she had not correctly buckled one of the children into a car safety seat. During the prison visits, Mr. P. did nothing inappropriate, but he did not know how to engage Trevor, to make him feel comfortable, or to ease his distress.
Participate in parenting and individual counseling and make progress toward the identified treatment goals.
Although Ms. W. took parenting classes, and was later provided with supervised parenting sessions that offered her feedback and instruction on proper parenting, she did not make adequate progress toward learning how to interact safely and appropriately with her children. She told the DCF social worker that she had learned to manage her anger in the parenting classes, but recent incidents during visitations show that she is still a risk to her children's safety and allows her anger to jeopardize her children's safety or well-being, particularly when confronted with a crying child, the very circumstance that led her to abuse Quirvontrey. These include the times (i) when she told baby Trevor that she would put him by himself in the hallway if he did not stop crying, thereby alarming Elijah and (ii) when she angrily pushed a stroller with a crying Trevor toward a table on which the child would have hit his head unless the visitation supervisor had intervened. She was repeatedly referred by DCF for individual counseling at Hartford Behavior Health Services, but she never followed through and told DCF that she did not need counseling or think that it is effective. Thus, despite the parenting classes she took and the direct supervision of her visits by Ms. St. John, the respondent mother has not demonstrated that she has made any progress toward the identified treatment goals. Mr. P. did not participate in any such programs as he was incarcerated until only a few weeks before the TPR trial.
Accept and cooperate with in-home support services referred by DCF and make progress toward treatment goals.
Neither party was referred for in-home support services.
Submit to substance abuse assessment and follow recommendations regarding treatment.
Ms. W. submitted to a substance abuse assessment early in the neglect case, after which no treatment was recommended, but by failing to keep in contact with her DCF social worker in the months prior to the TPR trial, she did not give DCF an opportunity for a follow-up assessment. Mr. P. did not participate in any substance abuse treatment while incarcerated and by not contacting DCF after his release from custody he did not comply with the order in the specific steps that he submit to a substance abuse assessment.
Submit to random drug testing; the time and method of that testing shall be at the discretion of DCF.
DCF wanted to schedule random drug testing for Ms. W. in the months prior to the TPR trial, but her lack of contact with her social worker since August 2010 prevented DCF from scheduling any drug tests. After his release from incarceration, Mr. P. did not contact DCF and the department had thus no opportunity to refer him for random drug testing or a substance abuse evaluation.
Cooperate with service providers recommended by DCF for parenting/individual/family counseling, in-home support services, and/or substance abuse treatment.As noted above, Ms. W. completed the parenting classes to which she was referred, but refused to accept the individual counseling at Behavioral Health Consulting Services to which DCF referred her. There were no specific providers DCF recommended that Mr. P. use because he was incarcerated for most of this case and did not contact DCF after his release.
Obtain and/or cooperate with a restraining order to avoid further domestic violence incidents (for Ms. W. only).
Evidence was introduced via an arrest warrant affidavit (for disorderly conduct and assault in the third degree) of a domestic violence incident on July 23, 2010, in which Larry S., whom Ms. W. told DCF was one of three persons who was possibly Quirvontrey's father, was alleged to have struck Ms. W. in the face with the back of his hand. Inexplicably, the studies in support of motions to review permanency plan dated March 25, 2010, and February 24, 2011, and that were introduced as exhibits in this proceeding both stated that there was "no information obtained indicating that domestic violence is an issue for mother at this time." Exhibit I, at 8; exhibit M, at 7. Insufficient evidence was introduced to allow the court to make a finding on this order in the specific steps.
Sign releases authorizing DCF to communicate with service providers to monitor attendance, cooperation and progress toward identified goals and for use in future proceedings before this court.Although Ms. W. initially complied with this order, she stopped doing so when she stopped maintaining contact with DCF in August 2010.
Secure and maintain adequate housing and legal income.
There was no evidence whether Mr. P. complied with this step after his release from incarceration. At the time of her initial contact with DCF in July 2009, when Ms. W. was in the hospital being treated for vaginal bleeding during her pregnancy with Trevor, she told DCF that she had been living with her mother for approximately the last week. DCF visited that apartment while Ms. W. was living there and found it to be extremely filthy, with little furniture, without any food, and infested with roaches and mice, including roaches on the bed. In November 2009 she moved into her own apartment, but when a DCF social worker visited there in February 2010 it had no heat. She later moved back in with her mother, but the evidence did not disclose whether the living conditions there were any less squalid than before, and, after August 2010, DCF did not know where she was living. She never obtained a job or any income other than the in-kind value of food stamps and a section eight housing certificate. Since Mr. P. never contacted DCF after his release from incarceration and did not appear for trial, there was no evidence as to whether he had secured and maintained adequate housing and legal income once back in the community.
No substance abuse. CT Page 9327
There is no evidence about whether the respondent father complied with this expectation, since he did not contact DCF after his release from incarceration to enable DCF to schedule a substance abuse evaluation and drug test. Ms. W. initially passed a substance abuse evaluation. DCF wanted to conduct random urine tests but was unable to do so after she lost contact with the department in August 2010.
No further involvement with the criminal justice system.
Although Ms. W. was arrested in February 2010, after issuance of the specific steps, the arrest was for her infliction of injuries upon Quirvontrey that were the basis for the original OTCs in this case. There was no evidence of any further involvement with the criminal justice system on the part of either respondent.
Cooperate with the Office of Adult Probation and conditions of probation.
The respondent mother has not been on probation during this proceeding. Although a DCF report indicated that it was unknown if Mr. P. was on probation or parole after his release from incarceration, in view of other evidence that his maximum release date would be in early 2011, when he was in fact released, it is likely that he is not on probation or parole unless there was some new arrest and conviction which the evidence did not disclose.
Accept and cooperate with applicable services offered by the Department of Corrections.
The respondent father Eric P. participated in domestic violence programs while incarcerated. There was no evidence as to whether he also availed himself of parenting programs, fatherhood initiative, and school and vocational programs offered by the department of corrections on a volunteer basis and for which there are long waiting lists.
Cooperate with court-ordered evaluations and testing.
Both Mrs. W. and Mr. P. participated as ordered in the psychological evaluation and parent-child interactional observation conducted by Dr. Derek Franklin in February 2010.
(4) The feelings and emotional ties of the child with respect to his parents, any guardian of his 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 — § 17a-112(k)(4).(a) Elijah: Even though Elijah was removed from his mother more than 18 months ago, she is still a significant person in his life. He talks about her during the week with his foster parents and gets angry if she misses visits. Recently, he had also begun to display anger at his mother at the beginning of each visit with her, but after a few minutes he would warm up. He would not get upset at the end of visits, however. He has no positive feelings or emotional ties toward his father, Eric P. The better evidence demonstrates, instead, that he has negative feelings toward Mr. P. On the other hand, he has bonded with the foster parents who have been caring for him since the end of 2009. He looks forward to returning to their home at the end of his visitations, and hugs them upon his return. He is comfortable and happy in their presence.
(b) Quirvontrey: Quirvontrey has not seen his mother in more than a year as a result of the criminal protective order entered against her when he was seventeen months old. When he was still seeing her, he appeared to DCF social workers to be comfortable in her presence, but "he [did] not behave in a manner that demonstrates she is someone significant in his life." Exhibit L, Social Study in support of Termination of Parental Rights Petition dated April 7, 2010, at 23. For example, he often preferred to explore his surroundings and play with available toys rather than interact with his mother. He does not know or have any feelings toward any of the men identified by the respondent mother as his possible father and named here as his putative fathers. He is happy and comfortable with his foster parents and in their home, where he has been placed since the end of 2009. He engages well with them and is bonded to them.
(c) Trevor: His foster parents are very bonded to him, and he is bonding appropriately with them, as they have provided him with nurturing, routine and consistency for most of his life. He saw his mother weekly for two-hour visits until they were suspended by the court, Dyer, J., as explained in more detail on p. 47. There was scant evidence about his feelings toward her, however, in view of his tender age. He does not know or have any feelings toward any of the men identified by the respondent mother as his possible father and named here as his putative fathers.
(5) The ages of the children — § 17a-112(k)(5).
Elijah was born on March 7, 2006, and has just turned five years old. Quirvontrey was born on June 28, 2008, and is 2 3/4 years old. Trevor was born on October 30, 2009, and is 17 months old.
(6) The efforts the parent has made to adjust his circumstances, conduct, or conditions to make it in the best interest of the child to return him to his 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 — § 17a-112(k)(6).Ms. W. made limited efforts to adjust her "circumstances, conduct, or conditions" to make it in the best interest of the children to return them to her home. Quirvontrey's fractures were the initial reason that the children were removed from her care, and despite her avowal that she had learned to control her anger from the parenting classes she attended, the evidence shows otherwise. Far too often she has subjected these young children to excessively rough or unsafe behavior during their visitations with her. The direct supervision and feedback provided by Ms. St. John from Behavioral Health Services who attended all the visitations did not help her to learn how to interact safely and appropriately with her children.
Perhaps this is not surprising in view of Ms. W.'s own traumatic history as a child. A statement that she made to the police and was introduced into evidence in this proceeding sets forth graphic details of the abuse she suffered herself as a child: physically and sexually abused at age four by her mother's boyfriend, threatened with violence if she disclosed that he had raped her, abused again at age seven by an uncle while in her grandmother's care, told by her stepfather that sometimes he wished she would die, and beaten so hard with the metal portion of belts that welts remain on her body as an adult. The horrible things that happened to her as a child left her with legitimate reasons to be angry. The specific steps ordered her to receive individual counseling, which Dr. Franklin also recommended after the psychological evaluation. Whether that counseling would have succeeded in helping her to overcome her tendency to be "hot-headed and quick to anger," in Dr. Franklin's words, in ways that jeopardize her children's safety and well-being will never be known, as she consistently refused to engage in counseling.
After being consistent in visitation for a long time, by the third quarter of 2010 Ms. W. had begun to start missing some of her visits and was no longer responding to all of DCF's requests for contact with her. Then she failed to appear for her TPR trial.
Elijah's father, Eric P. also did little to make it feasible to place Elijah with him either now or in the foreseeable future. He showed little ability to interact positively with Elijah. For example, Dr. Franklin said that during the interactional assessment Mr. P. looked uncomfortable in Elijah's presence and watched passively while the child clung to the social worker rather than trying to engage the child by inviting Elijah to him. After the court suspended his visits with Elijah, Mr. P. did not attempt to maintain contact with Elijah in other ways, such as by sending him cards, letters or gifts. When he was released from incarceration, he made no effort to contact DCF or Elijah.
Larry S. and Chris O., although identified by Ms. W. as possible fathers of Trevor and Quirvontrey, both disavowed being a father of her child or wanting to have any contact with the child or DCF. Neither of them did anything to adjust his circumstances, conduct, or conditions to make it in the best interest of the child to place that child in the putative father's home now or in the foreseeable future.
The respondent fathers James W. and Charles F. never contacted DCF, sought contact with their possible child, or did anything to adjust their circumstances, conduct, or conditions to make it in the best interest of the child to be placed in his home, either now or in the foreseeable future.
(7) The extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent — § 17a-112(k)(7).The physical abuse that Ms. W. heaped on Quirvontrey, and which led to all of these children being removed from her care and placed in foster homes, was an unreasonable act and conduct on her part; and the consequent removal of these children has obviously affected the ability of any of these respondent fathers to rejoin Ms. W.'s life and thereby gain a role in the life of a child of his. Since the placement of these children into DCF custody, however, none of the respondents has been prevented from having or maintaining a meaningful relationship with his or her child by virtue of any act of the child's other parent. DCF encouraged each of the respondent fathers it was able to contact to have a relationship with his child and to see the child, and offered services to Larry S. and Chris O. to address the issues that prevented them from having such a relationship or being able to care for the child that might be his. There was no evidence that economic circumstances prevented reunification or a meaningful relationship of any of these respondents with his or her child or children.
B Best Interest of the Children
The final element of the termination of the parental rights statute, § 17a-112(j), requires that, before granting a petition for such termination, the court must find "by clear and convincing evidence . . . (2) that termination is in the best interest of the child . . ." In determining whether terminating the respondents' parental rights would be in the best interests of the minor children here, the court has considered various factors, including the children's interest "in sustained growth, development, well-being, and in the continuity and stability of [their] environment"; Capetta v. Capetta, 196 Conn. 10, 16, 490 A.2d 996 (1985); their ages and needs; the length and nature of their stay in foster care; the nature of their relationship with their biological and foster parents; the limited contact maintained with the biological parents and the potential benefit or detriment of their retaining a connection with their biological parents; their genetic bond to each parent, In re Savanna M., 55 Conn.App. 807, 816, 740 A.2d 484 (1999); and the seven statutory factors and the court's findings thereon. The court has also balanced the children's intrinsic need for stability and permanency against the potential benefit of maintaining a connection with their biological parents. See Pamela B. v. Ment, 244 Conn. 296, 314, 709 A.2d 1089 (1998) (child's physical and emotional well-being must be weighed against the interest in preserving family integrity). The best interest standard is inherently flexible and fact-specific to each child, giving the court broad discretion to consider all the different and individualized factors that might affect a specific child's welfare.
The credible and reliable evidence establishes by clear and convincing evidence that terminating the parental rights of each of the respondent parents, other than John Doe, is in the best interest of each of these three children. None of the other respondent fathers has ever played an active role in the life of his child, or possible child, or shown an interest in his child for a considerable period of time. DCF encouraged the respondents with whom it made contact to maintain a meaningful relationship with his or her child, possible child, or children, but none of the respondent fathers maintained consistent contact with his child or possible child. While Eric P. told DCF that he would like to become a placement resource for Elijah, after his release from incarceration he did not contact DCF, showed no interest in Elijah, and failed to appear for the trial of the TPR petition. DCF referred Ms. W. to a reasonable array of services that offered her the possibility of learning how to remediate the issues that had led to DCF taking custody of her children. Although she undertook parenting classes and DCF provided ongoing supervision of her visitations to help her learn how to parent her children safely and appropriately, the evidence shows that she failed to benefit from those classes or the supervision and has never learned how to be an adequate and safe caretaker.
These are still young children. Although Elijah has entered kindergarten, can express himself, and is visible to others, Quirvontrey and Trevor are still quite young, only 2 3/4 and almost 1 1/2 years old. All of these children are still at ages at which they are unable to protect themselves, and they must therefore rely on responsible adults to meet their basic material needs for food, shelter, and medical care and their more intangible, but equally important needs for love, nurture and guidance.
The evidence shows that none of these parents or putative parents is ready or able to provide adequate care for these children either now or in the reasonable future. The three children have been in the same foster home since the end of 2009. They are bonded to their foster parents, fit well in their home, and look to them for care, nurture, and protection. The foster parents provide them with a good, nurturing, and stable home and are willing to adopt them.
Though a court in the dispositional phase may properly consider the suitability of proposed adoptive parents when addressing the child's best interest; see In re Vincent D., 65 Conn.App. 658, 666, 783 A.2d 534 (2001), and In re Baby Girl B., supra, 224 Conn. 275, (holding that "once a ground for termination has been shown to exist, the suitability and circumstances of adoptive parents, in an appropriate proceeding, may be considered." (internal quotation marks omitted)); this court "has fully adhered to the time-honored rule that `a judicial termination of parental rights may not be premised on a determination that it would be in the child's best interests to terminate the parent's rights in order to substitute another, more suitable set of adoptive parents.'" In Re Felicia S., Superior Court, judicial district of Middlesex, Child Protection Session at Middletown, docket no. CP01-011139-A (December 29, 2004) (Rubinow, J.), quoting In re Baby Girl B., supra, 224 Conn. 280. Elijah and Quirvontrey have been in foster care for 20 months, and Trevor for almost 17 months. During that time, Ms. W. has repeatedly shown that she is not ready to resume custody and she has shown no willingness to engage in the court-ordered services that had the potential to help her learn to control her temper and moderate her moods so that she could protect her children rather than being a threat to their safety. Her view that counseling is ineffective is particularly troubling in regard to the best interest of her children. Dr. Franklin noted that Elijah will probably need counseling, and in view of the physical injuries inflicted by his mother, Quirvontrey may also; yet Ms. W. adamantly believes counseling can do no good.
It could not benefit any of these children or be in their best interests to wait for Ms. W. to change her mind, and then to wait even longer to see if she learned to keep her children safe. It would not benefit any of these children to wait longer to see if any of the identified or putative fathers would become willing to assume a responsible position in the lives of their child. To the contrary, the clear and convincing evidence establishes that terminating the parental rights of each of these respondents other than John Doe is in the best interest of all three of these children. They each need a home that can meet their needs; yet none of the respondents offers the remotest prospect of being able to offer that either now or in the reasonably foreseeable future. Their normal childhood need for permanence and stability can only be met by completely severing their legal ties with the respondents and granting the department's petitions to terminate the parental rights of all respondents but John Doe to these three minor children.
C Orders of Termination
The court having considered all the statutory criteria, having found by clear and convincing evidence that grounds exist for the termination of each respondent's parental rights (except for John Doe), and having further found by clear and convincing evidence, upon consideration of all of the facts and circumstances presented, that it is in each child's best interest to terminate the parental rights of the respondent parents (except for John Doe), it is hereby ORDERED:
The department's petitions for termination of parental rights are granted and judgment may enter terminating the parental rights (i) of Tiquana W. to Elijah W., Trevor W., and Quirvontrey W.; (ii) of Eric. P. to his minor child Elijah W.; (iii) of Larry S., to Trevor; and (iv) of James W., Chris O., and Charles F., to Quirvontrey.
Pursuant to General Statutes Section 17a-112(m), it is ordered that the Commissioner of the Department of Children and Families be appointed statutory parent for Elijah and Quirvontrey so that they may be placed for adoption. In securing the adoption, the court urges the department to give first preference to the present foster parents.
General Statutes Section 17a-112(m) provides, in pertinent part, as follows: "The Superior Court may appoint a statutory parent at any time after it has terminated parental rights if the petitioner so requests."
Pursuant to General Statutes § 17a-112(o) and Practice Book Section 35a-14(g), the statutory parent shall file a written report on the case plan for these two children, the permanency plan, and the status of the children with the clerk of the Superior Court for Juvenile Matters at Hartford on or before May 10, 2011 at 9:00 a.m. A written status report on implementation of the plan will be due by August 10, 2011. A permanency plan was most recently approved by the court, Dannehy, J., on June 3, 2010, and on March 3, 2011, DCF filed a new motion to review the permanency plan for the children, in accordance with General Statutes § 46b-129(k), which is scheduled to be heard on April 14, 2011.
General Statutes Section 17a-112(o) provides, in pertinent part, as follows: "In the case where termination of parental rights is granted, the guardian of the person or statutory parent shall report to the court not later than thirty days after the date judgment is entered on a case plan, as defined by the federal Adoption Assistance and Child Welfare Act of 1980, for the child which shall include measurable objectives and time schedules. At least every three months thereafter, such guardian or statutory parent shall make a report to the court on the progress made on implementation of the plan. The court may convene a hearing upon the filing of a report and shall convene and conduct a permanency hearing pursuant to subsection (k) of section 46b-129 for the purpose of reviewing the permanency plan for the child no more than twelve months from the date judgment is entered or from the date of the last permanency hearing held pursuant to subsection (k) of section 46b-129, whichever is earlier, and at least once a year thereafter while the child remains in the custody of the Commissioner of Children and Families."
Practice Book Section 35a-14(g) provides in pertinent part as follows: "Where a petition for termination of parental rights is granted, the guardian or statutory parent of the child or youth shall report to the judicial authority not later than thirty days after the date the judgment is entered on a permanency plan and on the status of the child or youth. At least every three months thereafter, such guardian or statutory parent shall make a report to the judicial authority on the implementation of the plan, or earlier if the plan changes before the elapse of three months. The judicial authority may convene a hearing upon the filing of a report and shall convene and conduct a permanency hearing for the purpose of reviewing the permanency plan for the child no more than twelve months from the date judgment is entered or from the date of the last permanency hearing held in accordance with General Statutes § 46b-129(d), whichever is earlier, and at least once a year thereafter while the child or youth remains in the custody of the commissioner of the department of children and families."
Additional reports and/or motions to review of the plan for Elijah and Quirvontrey will be filed in accordance with state and federal law at least every three months until such time as the children's adoptions are finalized.
The department is also ordered to notify the clerk of the Superior Court for Juvenile Matters at Hartford in writing when the adoptions are finalized.
Pursuant to an agreement between the Chief Court Administrator and the Chief Probate Court Administrator, the clerk of the Probate Court that has jurisdiction over any subsequent adoptions of these children is ordered to notify in writing the clerk of the Superior Court for Juvenile Matters at Hartford of the date when said adoptions are finalized.