Opinion
No. H12-CP07-011385-A
May 13, 2008
MEMORANDUM OF DECISION
This is a coterminous neglect and termination of parental rights (TPR) case.
On July 24, 2007, the commissioner of children and families filed a petition alleging that Xavier D., was neglected, in that the child is being denied proper care and attention, physically, educationally, emotionally or morally and that the child is being permitted to live under conditions, circumstances or associations injurious to his well-being.
On May 9, 2007, the commissioner of children and families filed an amended petition seeking the termination of the parental rights of the respondents Michelle D., and the putative father, John Doe, the parents of the minor child, Xavier D. ("Xavier") born on May 29, 2006.
At the commencement of the trial, the court granted the petitioner's amended motion for judicial notice, filed on April 1, 2008, but did not take judicial notice of the January 23, 2006, Memorandum of Decision within said amended motion. The mother's attorney objected to the court taking notice of the January 23, 2006 Memorandum of Decision. The Memorandum of Decision was subsequently entered as an exhibit by the petitioner.
The court takes judicial notice of the following.
1. 5/9/07, filing of co-terminus petition and ex parte motion for order of temporary custody and vesting temporary custody in DCF; finding that child is in immediate physical danger from his surroundings, and that continuation in the home is contrary to the child's welfare. (Signed 5/8/07 and file stamp 5/9/07.) (Frazzini, J.)
2. 5/8/07, finding that reasonable efforts to prevent or eliminate the need for removal of said child were made. (Frazzini, J.)
3. 5/18/07, order of temporary custody sustained without prejudice. (Keller, J.)
4. 5/25/07, order of temporary custody sustained after trial and preliminary specific steps ordered. (Dannehy, J.)
5. 6/7/07, service by publication confirmed and default entered against father John Doe for failure to appear. (Wollenberg, J.)
6. 7/19/07, respondent-mother's Motion to Strike neglect petition, vacate OTC and dismiss TPR granted; bench OTC ordered; finding that child is in immediate physical danger from his surroundings and immediate removal from such surroundings is necessary to ensure the child's safety; finding that continuation in the home is contrary to the child's welfare and that reasonable efforts to prevent removal were not possible. (Wollenberg, J.)
7. 7/24/07, filing date of amended neglect petition.
8. 7/27/07, a new petition has been filed by the department; Court vacates decision of dismissing the OTC and reinstates original OTC; Court vacates ruling dismissing TPR petition and reinstates TPR petition. (Dannehy, J.)
9. 8/7/07, all motions continued to Judge Dannehy's docket. (Gleeson, J.)
10. 8/24/07, re-filing of amended neglect petition.
11. 8/28/07, respondent-mother's Motion for Judgment denied; mother's Motion for Immediate Hearing moot; mother's Motion for Order previously heard; Motion to Review Dirty Child denied and mother's Motion to Reconsider denied; State's Motion to Correct previously heard and State's Objection to Motion to Strike previously heard. (Dannehy J.)
12. 9/24/07, respondent-mother's Motion for Placement of child with maternal grandmother and Motion to Vacate OTC denied and transcript ordered. (Dannehy, J.)
With respect to the child's sibling, Davion D.
1. 7/29/04, ex parte order of temporary custody granted; finding that child is immediate physical danger from surroundings; that continuation in home is contrary to welfare of child; and reasonable efforts to prevent removal not possible. (Bentivegna, J.)
2. 8/6/04, order of temporary custody sustained and preliminary specific steps ordered. (Bentivegna, J.)
3. 2/16/05, adjudication of neglect and commitment; final specific steps ordered. (Wollenberg, J.)
4. 7/23/05, filing date of Petition for Termination of Parental Rights by Commissioner, Department of Children and Families."
The mother's parental rights of another child were previously terminated pursuant to a petition filed by the Department of Children and Families in that the mother's parental rights were terminated on January 23, 2006, as to her child Davion D., Superior Court, Juvenile Matters at Hartford, Docket #H12-CP04-009848-A. (Dannehy, J.) Petitioner's exhibit #11.
The court finds that the father of Xavier, John Doe, was also noticed of the pendency of these actions by publication in the Hartford Courant, a newspaper with statewide circulation on April 11, 2008. The father did not appear at the trial. The court defaulted the father, John Doe, for his failure to appear on May 2, 2008.
In addition, no individual has come forward to claim paternity of Xavier.
With regard to the mother, the petition alleges the following grounds for termination of her parental rights pursuant to General Statutes § 17a-112(j)(3)(E).
The mother of the child, under the age of seven years who is neglected or uncared for, has failed, is unable or is unwilling to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child and such parent's parental rights of another child were previously terminated, pursuant to a petition filed by the Commission of the Department of Children and Families.
With regard to the father, the petition alleges the following grounds for termination of his parental rights pursuant to General Statutes § 17a-112(j)(3):
(A) The child/youth has been abandoned by the father in the sense that the parents failed to maintain a reasonable degree of interest, concern, or responsibility as to the welfare of the child/youth.
(D) There is no ongoing parent-child/youth relationship with respect to the father that ordinarily develops as a result of a parent having met on a continuing day-to-day basis the physical, emotional, moral, or educational needs of the child/youth and to allow further time for the establishment or re-establishment of the parent-child/youth relationship would be detrimental to the best interests of the child/youth.
The court finds that notice has been given in accordance with the General Statutes and the Practice Book. The court finds that it has jurisdiction in this matter. There is no other action pending in any other court affecting the custody of Xavier known to this court.
On April 1 and May 2, 2008, this matter was heard at the Superior Court for Juvenile Matters, Child Protection Session, Judicial District of Middlesex. The petitioner, the commissioner of children and families, was represented by an assistant attorney general. The minor child was represented by an attorney who also served as the guardian ad litem for the child. The mother appeared at the trial and was represented by an attorney. The father did not appear at the trial.
Because the petitions for neglect and termination were consolidated in this case, the court must first determine by a fair preponderance of the evidence, if the child has been neglected, as alleged, as of the date the neglect petition was filed. In re Juvenile Appeal (84-AB), 192 Conn. 254, 263, 471 A.2d 1380 (1984); In re Clark K., 70 Conn.App. 665, 669-70, 799 A.2d 1099 (2002); In re Daniel C., 63 Conn.App. 339, 350, 776 A.2d 487 (2001). If the petitioner's evidence does not support such a finding, then both the neglect and termination petition must be dismissed. If the court finds that the child has been neglected, disposition is deferred until a decision is made on the termination petition. The court must next determine whether the proof provides clear and convincing evidence that any pleaded ground exists to terminate the parents' rights as of the date the petition was filed. If no ground for termination is found, the court must proceed on the neglect petition and consider an appropriate disposition.
If a ground has been found to adjudicate the child neglected and to terminate the parental rights, applying the respective standards of proof, the court must then move on to the third stage and consider whether the facts as of the last day of trial establish by clear and convincing evidence that termination is in the child's best interest, after considering the seven factors set forth in C.G.S. 17a-112(k). If the court does not find that the child's best interest would be served by termination, it must return to and dispose of the neglect petition. If the court does find that termination serves the child's best interest, an order shall enter terminating parental rights.
The court has reviewed the verified petitions, heard the testimony of the witnesses produced at the hearing, and considered each full exhibit. The petitioner introduced ten exhibits at the trial which included the social study in support of coterminus petition, and case status reports from the Department of Children and Families, two psychiatric evaluation reports by Dr. Marvin Zelman, reports from service providers, the Capitol Region Education Council, the Asylum Hill Family Practice, the Community Health Services and a Memorandum of Decision of the Juvenile Court dated January 23, 2006, in regard to another child of the mother. The mother introduced one exhibit, a medical report from the Connecticut Children's Medical Center. The child's attorney did not introduced any exhibits at trial.
The petitioner called six witnesses to testify at trial, including a DCF social worker, service providers, the child's foster parent and the psychiatrist who conducted the court-ordered evaluations. No other witnesses were called by any of the other parties to the case. The court advised the mother that it would not be applying any adverse inference as a result of the mother not testifying.
The court finds that the following facts were proved at trial by clear and convincing evidence.
The mother is twenty-three years old. The mother had a difficult childhood and reported that her father was an alcoholic and could be abusive to her. She reported that in her teenage years, her maternal grandmother filed a Family With Service Needs Petition for her due to truancy, failure to follow house rules, oppositional behavior and substance abuse. She also reported that she had been involved in serious criminal behavior as a teenager including gang-related activity and selling drugs. As a result, she was dually committed and was placed in two residential treatment facilities, the Stepping Stones and the Pines. She has also received her high school diploma and did receive a CNA certificate from a local community college in August 2007. She has not obtained employment as a CNA as of the trial. She has, however, been working at a department store since December 2007. The mother is currently residing with her maternal grandmother and her seventeen-year-old brother. The mother and the maternal grandmother have a tumultuous relationship.
The mother has never been married. She has given birth to two children during her life, Xavier and Davion. Davion was born on May 3, 2004. He was removed from her care on August 6, 2004, and her parental rights were terminated on January 23, 2006.
The mother was also referred by DCF for parenting services through the Capitol Region Education Council (CREC) from August 2004, through November 2004, as well as a second time period of February 2007 to June 2007. The services were designed to assist the mother with parenting skills. Those parenting skills included giving advice about the needs of the child such as feeding, diaper changes and how to interact with the child. The mother, particularly during the second time period, showed inconsistency in the daily child caring routines and showed an inability to keep the residence well-organized and safe for the child. The residence was unsanitary and the mother failed to recognize the child's cues for feeding and diaper changes. She showed limited progress with the program. The termination summary from CREC as of June 30, 2007, reported that the mother was discharged from My Sister's Place on June 12, 2007, due to noncompliance. It was recommended that the mother would benefit from more parenting services due to her instability. Additional treatment with a mental health professional was recommended. When the mother moved out of the service area, CREC closed its case on the mother.
The mother moved on August 3, 2006, to the East Hartford Family Shelter. On August 29, 2006, she was evicted from that shelter due to noncompliance with the shelter rules. She then moved into the home of the maternal grandmother. She was told by the maternal grandmother that she had to leave her home by October 2006. On October 12, 2006, she moved into the South Marshall Shelter House. In November 2006, the mother entered My Sister's Place with the assistance of DCF. It is a transitional living place program for women and their children designed to assist them to avoid homelessness and help them obtain permanent housing. While at My Sister's Place, each resident has their own apartment which is fully furnished. They also provided additional services to the residents such as providing diapers, baby food, food for the resident, clothing, cleaning supplies, bus passes, day care services, employment services, medical services, psychology clinical services including a staff person that is a certified clinical rehabilitation counselor. The mother, as part of her obligation to My Sister's Place was required to contribute to the expenses such as the phone bill, electricity, rent as well as doing twenty hours of community services such as by being in school, working or volunteering. A DCF social worker testified that when she visited the mother at her apartment at My Sister's Place, it was usually in very unsanitary condition, with dirty diapers and clothing everywhere and the child wandering around. The mother did not comply with the conditions of My Sister's Place, including not going to the 20-hour a week activities and not cooperating with the assistance given to her to facilitate her compliance with that requirement. In May 2007, the mother was also observed by the staff of My Sister's accidentally dropping Xavier on the floor, as well as shaking Xavier in a violent manner. This ultimately contributed to DCF's decision to take custody of the child, with a subsequent order of temporary custody. The child was removed from the mother's care in May 2007, but the mother still remained at My Sister's Place. The mother received multiple warnings from the shelter staff for not complying with the shelter rules, the unsanitary conditions of her apartment, refusing to attend groups, refusing to meet with her assigned clinician, refusing to attend community services programs and/or seek employment, lack of parenting skills and her refusal to stop sleeping with the child in the bed. It was also reported by the staff that the mother did not follow through with medical appointments, missed WIC appointments and that she would leave the child unsupervised while she left the apartment to smoke a cigarette and talk on the cell phone. Accordingly, as the mother was not substantially complying with the shelter rules, she was asked to leave the program in June 2007.
The mother was referred by DCF for individual counseling through the Asylum Hill Family Medicine. A counselor from that service provider testified as an expert in social work and counseling. The counselor first met the mother on September 6, 2006, until the counseling was terminated on February 28, 2007. The mother attended six sessions. During said period of time, there should have been approximately ten to twelve counseling sessions but the mother only attended six. The goals that were set for the mother included finding work, saving money to get an apartment and returning to school to become a medical assistant, all with the goal of not losing custody of Xavier. During that period, the mother entered a homeless shelter until she was able to receive a placement at My Sister's Place. The counselor testified that the mother did not make progress with regard to her counseling. Accordingly, the counselor believed that as the mother was living at My Sister's Place, it would be more appropriate for her to continue with her counseling there. The mother did complete a parenting program in January 2008, at the Rambaugh Family Center. She is not enrolled in any additional parenting program.
On February 28, 2007, the mother was scheduled for an appointment at Community Health Services for a psychiatric evaluation. She did not attend that appointment. The appointment was rescheduled for March 13, 2007, however, she failed to attend. The mother was referred to Community Health Services for mental health counseling again in October 2007. The mother did attend several appointments, but also missed other appointments, with her last appointment being on December 10, 2007.
The DCF social worker assigned to the case testified that the mother has informed her that she never felt like she needed services and was only going through the motions to get Xavier back.
The mother has complied with some of the specific steps previously ordered in this case, including, cooperating with the court evaluations, signing of the releases and attending some counseling. She has not complied with some of the specific steps, including, failing to engage in the recommended services of parenting classes, mental health services, counseling, and failing to maintain adequate housing.
Since the involvement of DCF, the mother was also given referrals to the Baby Academy, which is a parenting education program. The mother never attended that program. She was also given bus passes by DCF to get to her appointments. She also was assisted by DCF by being referred to the Department of Social Services for her finances. DCF also paid for the mother's tuition when she first entered the community college for the CNA program. DCF also assisted the mother with her WIC appointments. The mother was also referred to the Birth-to-Three Program on behalf of Xavier. The mother did not attend the first referral and failed to respond to telephone calls and mail contact for the second referral. She ultimately did attend.
Since the child has been placed in foster care, the mother has visited with him consistently. A DCF social worker testified that the interaction between the mother and Xavier is very limited and that the mother is not an active participant in the visits.
On March 26, 2008, the mother reported to the DCF social worker that she plans on moving to Brooklyn, despite having no connection with any relatives or friends there.
Despite the numerous programs that the mother has participated in, she still does not know how Xavier fits into her life. The mother still does not have parenting skills that are appropriate and does not have the ability to meet Xavier's physical, emotional and educational needs. The mother has failed to fully participate in the mental health programs and has failed to benefit from the parenting services provided to her. The mother is still living in an unhealthy environment with the maternal grandmother. Her plan to move to Brooklyn without any resources, family or friends is not going to assist her in being able to care for Xavier properly.
The father of the child is unknown. He has never acknowledged the child. There is no evidence that the father has ever seen, lived with or visited the child. The father has never provided any emotional or financial support for the child. He has not sent any cards, gifts or letters to the child. The father has never acknowledged the child's birthday or any other special days. The father has never appeared at any court hearings and has never contacted DCF.
The child, Xavier, was born on May 29, 2006, and is two years old. Xavier was evaluated by a Birth-to-Three specialist after displaying a lack of verbal skills. He was determined not to be eligible for services. He was also evaluated on May 30, 2007, by Community Health Services with a recommendation that he needed his behavior monitored. He has not had any major illnesses or hospitalization since his birth. He was placed in a foster home on May 8, 2007, and remained there for several months. On August 1, 2007, Xavier was placed in a foster home where he still resides. The foster parent also has a boy who is almost three years old living in the home. He was previously adopted. Xavier has adjusted very well to this foster family. His foster parent testified at the trial that he would like to adopt Xavier should he be available for adoption. The foster parent further testified that Xavier has made tremendous progress in his behavior including his language and comprehension skills since he was first placed in his home approximately eight months ago.
Dr. Marvin Zelman, a psychiatrist, testified as an expert in psychiatry. He conducted a psychiatric evaluation of the mother on November 5, 2004. His report of that evaluation, dated November 17, 2004, was entered as an exhibit by the petitioner. In addition, approximately three years after his first evaluation, Dr. Zelman, also conducted a second psychiatric evaluation of the mother and an interactional interview with the mother and Xavier. His report of that evaluation, dated October 23, 2007, was also entered as an exhibit by the petitioner.
In his 2004 report, Dr. Zelman's psychiatric diagnosis of the mother included; polysubstance abuse (alcohol, marijuana, ritalin, cocaine and ecstacy), mixed personality disorder with sociopathic features, borderline intellectual functioning and severe stressors arising from homelessness, drug abuse and antisocial lifestyle.
He further opined in his 2004 report the following.
In my opinion [the mother] does not have the capacity to develop appropriate relationships or discharged meaningful or adequate childcare responsibilities. She has very significant intellectual and cognitive impairments which limit her ability to understand even the minimum standards for proper childcare. In addition, she has severe limitations of moral judgment. All of her behavior is goal directed and she has few, if any, moral or legal constraints. She appears not to have developed a conscience. She is frequently involved in activities carrying great risk to her own welfare thereby rendering her unfit to be trusted with the welfare of her child. She is certainly not currently capable of discharging childcare responsibilities with or without appropriate assistance. She does not currently have a psychiatric condition the treatment of which would substantially improve her prognosis. Given her lack of moral development and propensity for substance abuse, I feel she could best be served by involvement in a behaviorally structured program with a religious core.
In Dr. Zelman's October 23, 2007 report, his psychiatric diagnosis of the mother included; polysubstance abuse in remission, mixed personality disorder with antisocial features, and borderline intellectual functioning. Dr. Zelman testified that a personality disorder is a descriptive term used for individuals who fail to learn from experiences and have continued behaviors that are dysfunctional despite attempts by others to change that. She also has a prominent antisocial feature which means that she came into conflict with the law and common morality.
As to the interactional interview between the mother and Xavier, Dr. Zelman in his report stated the following.
When Xavier was brought into the interview room mother sat in her chair and watched the child as an observer. Engagement was extremely limited. The child needed help with his clothing but mother did not respond to his cues. She did not smile at her son, hold him or express any warmth. She just sat in her chair and talked to him. It appeared as if she did not know how to relate to her own child. She reacted to him as if he were a stranger.
Furthermore, the report also stated:
His mother's engagement with him was extremely limited. When Xavier left the interactional session, there were no hugs and kisses, and he walked out of the room as if he had been with a stranger.
In his report of October 23, 2007, Dr. Zelman opined the following.
While the biological mother . . . has improved mentally and is now sober and drug free she remains very significantly impaired and disabled. She has limiting intellectual deficits and is functioning at the borderline level at best. Most likely she is mentally retarded. Her social judgment is poor and she is unable to successfully cope with any environment. She cannot work or take care of herself. She needs supervision . . .
CT Page 8612
Michelle [D.], the mother, is intellectually impaired and has personality characteristics which impair her social relationships. Her judgment is poor, she has no insight into her behavior, she is incapable of providing for herself and is also incapable of providing consistent childcare . . .
The biological mother . . . will never have the capacity to provide adequate, safe and consistent childcare because of her limited intellectual endowment, poor judgment and her personality disorder. She is disabled mentally and would benefit from custodial care for herself . . .
[The mother] is totally incapable of resuming a responsible position in the life of her child. She has a limited intellectual endowment, poor judgment and personality characteristics which interfere with successful functioning. She does not have the capacity to assume a responsible position in the life of her child.
In his testimony at the trial, Dr. Zelman reiterated his previous findings in his reports that the mother cannot provide consistent child care, and that she does not have the capacity to engage or raise a child and does not seem to understand how to relate to a child. While the mother has made some improvement between the 2004 and 2007 evaluations, she still lacks the overall capacity for a custodial relationship. She does not have the insight and has impulsive judgment. Dr. Zelman further testified that the ability to provide consistent child care is important for the proper nurturance and development of a child and that inconsistent childcare would put the child at high risk to develop abnormally and perhaps along the same lines that the mother has developed. Dr. Zelman concluded that he does not think that will change and that a child cannot be entrusted to her. He does not believe that she would ever rise to the point where she could ever be entrusted with the custodial care of a child.
ADJUDICATION-NEGLECT
When considering coterminous petitions, the court first determines whether the child is neglected by a fair preponderance of the evidence. Practice Book § 35a-3; In re Jonathan M., 255 Conn. 208, 211 n. 3, 764 A.2d 739 (2001). "In the adjudicatory phase, the judicial authority is limited to evidence of events preceding the filing of the petition or the latest amendment, except where the judicial authority must consider subsequent events as part of its determination as to the existence of a ground for termination of parental rights." Practice Book § 35a-7.
The petition alleges two grounds for neglect by the respondents. First, that the child was neglected in that he was denied proper care and attention, physically, educationally, emotionally or morally. General Statutes §§ 46b-120(9)(B), 46b-129(a). Second, the child was neglected in that he was permitted to live under conditions, circumstances or associations injurious to well being. General Statutes §§ 46b-120(9)(c), 46b-129(a).
Based on the evidence introduced at trial, the court finds, by a fair preponderance of the evidence, that Xavier was neglected by the respondents in that he was denied proper emotional care and attention. In addition, the court finds by a fair preponderance of the evidence that Xavier was neglected in that he was permitted to live under conditions, circumstances or associations injurious to his well being. The mother has not been able to address her mental health and parenting issues and as such was unable to be given the responsibility of raising a young child. The mother has had difficulty avoiding homelessness. The father has not had any contact with the child during the child's entire life.
Accordingly, the court finds in favor of the petitioner as to Xavier, and therefore, enters a neglect adjudication on both grounds as to the child.
TERMINATION OF PARENTAL RIGHTS
The court has found the allegations in the neglect petition established, therefore, it proceeds to the termination of parental rights petition.
"The termination of parental rights is defined as the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his [or her] parent . . . [and as such, it] is a most serious and sensitive judicial action." (Internal quotation marks omitted.) In re Jonathan M., 255 Conn. 208, 231, 764 A.2d 739 (2001); see also In re Bruce R., 234 Conn. 194, 200, 662 A.2d 107 (1995).
Our state statutes govern the termination of parental rights. See General Statutes § 17a-112 et al. The petitioner must prove by clear and convincing evidence one of the grounds alleged in the petition as of the date of the filing of the petition or the last amendment of the petition, except that the court, in considering whether the failure to rehabilitate stated in § 17a-112(j)(3)(B)(1) has been proved by clear and convincing evidence, can consider, in the exercise of its discretion, whether a respondent has sufficiently rehabilitated as a parent through the date of the trial. In re Teresa S., 196 Conn. 18, 29, 491 A.2d 355 (1985); see also In re Latifa K., 67 Conn.App. 742, 749-50, 789 A.2d 1024 (2004); Practice Book §§ 32a-3(b) and 35a-7. Only one ground need be established for the granting of the petition. In re Juvenile Appeal (84-BC), 194 Conn. 252, 258, 479 A.2d 1204 (1984); In re Karrlo R., 44 Conn.Sup. 101, 106, 669 A.2d 1249 (1994), aff'd, 40 Conn.App. 73, 668 A.2d 1353 (1996).
The trial of a termination of parental rights case proceeds in two stages, the adjudication and the disposition. In the adjudicatory stage, the issue is whether the evidence establishes by clear and convincing evidence the existence of one or more of the statutory grounds as of the date the petition was filed or last amended. In re Eden F., 250 Conn. 674, 688, 741 A.2d 873 (1999). "Pursuant to Practice Book § 33-3(a) [now § 35a-7], in deciding the adjudicatory phase of the hearing for the termination of parental rights, the trial court's inquiry is limited to the events and facts preceding the filing of the petition for the termination of parental rights [or last amendment]." In re Daniel C., 63 Conn.App. 339, 357, 776 A.2d 487 (2001). However, "[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 Stanley D., 61 Conn.App. 224, 230, 763 A.2d 83 (2000); see In re Latifa K., supra, 67 Conn.App. 748.
If the court finds that DCF has proved by clear and convincing evidence at least one of the pleaded grounds for termination, the court then proceeds to the disposition stage. In that stage, the court must consider whether the facts, as of the last day of trial, establish by clear and convincing evidence that termination is in the child's best interest. In re Ryan R., 102 Conn.App. 608, 618, 926 A.2d 690, cert. denied, 284 Conn. 923, 924, 933 A.2d 724 (2007). Procedurally, the evidence as to both adjudicatory and dispositional phases may be at the same trial without first determining if the state has proven a statutory ground for adjudication before consideration of the dispositional phase. In re Juvenile Appeal (84-BC), supra, 194 Conn. 259; State v. Anonymous, 179 Conn. 155, 172-73, 425 A.2d 939 (1979); In re Jason P., 41 Conn.Sup. 23, 24, 544 A.2d 286 (1988).
ADJUDICATION A. LOCATION AND REUNIFICATION EFFORTS
Prior to the granting of a petition for the termination of parental fights, General Statutes § 17a-112(j)(1) requires that the court must find by clear and convincing evidence that "the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent . . . unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts, except that such finding is not required if the court has determined at a hearing . . . or determines at trial on the petition, that such efforts are not required." "Reasonable efforts means doing everything reasonable, not everything possible." (Internal quotation marks omitted.) In re Ryan R., 102 Conn.App. 608, 619, 926 A.2d 690 (2007) cert. denied, 284 Conn. 924, 933 A.2d 724 (2008). "[R]easonableness is an objective standard . . . and whether reasonable efforts have been proven depends on the careful consideration of the circumstances of each individual case." (Internal quotation marks omitted.) In re Hector L., 53 Conn.App. 359, 372, 730 A.2d 106 (1999); In re Antonio M., 56 Conn.App. 534, 547, 744 A.2d 915 (2000).
The court hereby finds by clear and convincing evidence as to the mother and father that the petitioner has made reasonable efforts to locate the mother and father and reunify them with the child. The mother and father are unable or unwilling to benefit from those reasonable efforts and further efforts to reunify the child with the parents are no longer appropriate.
As detailed in this decision, and as evidenced by the exhibits and testimony presented, DCF has assisted the mother in referring, assisting and monitoring service providers to the mother to help her address the parenting concerns, mental health issues, housing issues and other issues as previously discussed in this decision. The services made available to the mother included, parenting assistance, mental health assistance, housing assistance, visitation, transportation assistance, substance abuse evaluation, counseling and educational assistance. The father has been unknown since the commencement of the department's involvement in this case and it was not possible to offer services for reunification to the father as he has not made himself available to receive services.
Accordingly, DCF has made reasonable efforts to reunify the parents with the child.
STATUTORY GROUNDS FOR TERMINATION OF PARENTAL RIGHTS AS TO THE MOTHER PARENTAL FAILURE TO REHABILITATE: GENERAL STATUTES § 17a-112(j)(3)(E)
It is alleged by the petitioner that the parental rights of the mother should be terminated because the mother has failed to achieve rehabilitation within the meaning of Connecticut General Statutes § 17a-112(j)(3)(E), which provides that parental rights may be terminated by the Superior Court as to "the parents of a child under the age of seven years who is neglected or uncared for, has failed, is unable or is unwilling to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child and such parent's parental rights of another child were previously terminated, pursuant to a petition filed by the Commissioner of Children and Families."
The court finds by clear and convincing evidence that the mother is the parent of a child under the age of seven years old, the child having been born on May 26, 2006. The child was adjudicated as a neglected child and committed to the care and custody of the petitioner pursuant to this judgment. The mother's parental rights of another child were previously terminated pursuant to a petition filed by DCF in that the mother's parental rights were terminated on January 23, 2006, as to her child Davion.
In addition, the court also finds by clear and convincing evidence that the mother has failed and is unable or unwilling to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the age and needs of the child, the mother could assume a responsible position in the life Xavier. The mother's conduct, both prior to and subsequent to the date of the filing of the termination of parental rights petition demonstrates that she has been unable to address her mental health and housing issues, nor has she made progress in improving her parenting skills. She has not benefitted from the parenting classes that she has taken. The mother is not in a position to assume a responsible position in the life of her son within a reasonable period of time considering the age and needs of her child.
Accordingly, by clear and convincing evidence, based on the evidence presented, the court finds that the petitioner has sustained its burden of proof on the issue for failure to rehabilitate and concludes that the mother is a parent of a child under the age of seven years who is neglected or uncared for, and that the mother has failed, is unable or is unwilling to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the age and needs of the child, such parent could assume a responsible position in the life and the child and such parent's parental rights of another child were previously terminated through a petition filed by the commissioner of children and families.
"[R]ehabilitation must be foreseeable within a reasonable time . . ." (Internal quotation marks omitted.) In re Sheila J., 62 Conn.App. 470, 480, 771 A.2d 244 (2001). "What constitutes a reasonable time is a factual determination that must be made on a case-by-case basis." In re Stanley D., 61 Conn.App. 224, 231, 763 A.2d 83 (2000). The court in In re Shyliesh H., 56 Conn.App. 167, 180, 743 A.2d 165, (1999), stated that "in 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). Id. See also; In re Danuael D., 51 Conn.App. 829, 840, 724 A.2d 546 (1999).
STATUTORY GROUNDS FOR TERMINATION OF PARENTAL RIGHTS AS TO THE FATHER, ABANDONMENT: GENERAL STATUTES § 17a-112(j)(3)(A)
It is alleged by the petitioner that the parental rights of the father should be terminated because the child has been abandoned by the father in the sense that he has failed to maintain a reasonable degree of interest, concern or responsibility in the welfare of the child within the meaning of General Statutes § 17a-112(j)(3)(A). "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 Juvenile Appeal, 183 Conn. 11, 14, 438 A.2d 801 (1981)." In re Kezia M., 33 Conn.App. 12, 18, 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993); In re Terrance C., 58 Conn.App. 389, 394, 755 A.2d 232 (2000). Indicia of interest, concern and responsibility include "[a]ttempts to achieve contact with a child, telephone calls, the sending of cards and gifts, and financial support . . ." (Internal quotation marks omitted.) In re Drew R., 47 Conn.App. 124, 129, 702 A.2d 647 (1997). "In the context of termination of parental rights due to abandonment, this court has stated that among the generally understood obligations of parenthood are the expression of love and affection for the child, and the expression of personal concern over the health, education and general well-being of the child." In re Alexander C., CT Page 8618 67 Conn.App. 417, 426, 787 A.2d 608 (2001), aff'd, 262 Conn. 308, 813 A.2d 87 (2003).
By clear and convincing evidence, based on the evidence presented and disclosed in this decision, the court finds that the petitioner has sustained its burden of proof on the issue of abandonment and concludes that the child has been abandoned by the father under § 17a-112(j)(3)(A).
There is no evidence that the father has ever seen, lived or visited with the child. Furthermore, the father has never provided any emotional or financial support for the child or that he ever sent any cards, gifts or letters to the child. The father has never acknowledged the child's birthday or any other special days. The father has never shown an interest in the child's health or welfare. The father has not inquired about the child or ever requested visitation. The father has never shown up for any court appearances. This finding is based upon the evidence presented in this case, including the exhibits and testimony of the witnesses as discussed in this decision.
STATUTORY GROUNDS FOR TERMINATION OF PARENTAL RIGHTS AS TO THE FATHER, LACK OF ONGOING PARENT-CHILD RELATIONSHIP: GENERAL STATUTES § 17a-112(j)(3)(d)
It is alleged by the petitioner that the parental rights of the father should be terminated because there is no ongoing parent-child relationship within the meaning of General Statutes § 17a-112(j)(3)(D). This means that, pursuant to the evidence presented, 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 has not been established 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.
The petitioner must establish that (1) "no ongoing parent-child relationship exists;" and (2) "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." (Internal quotation marks omitted.) In re Jonathon G., 63 Conn.App. 516, 525, 777 A.2d 695 (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." (Internal quotation marks omitted.) In re Juvenile Appeal, (Anonymous), 181 Conn. 638, 645-46, 436 A.2d 290 (1980); In re John G., 56 Conn.App. 12, 22, 740 A.2d 496 (1999).
By clear and convincing evidence, based on the evidence presented, the court finds that the petitioner has sustained its burden of proof and finds as to the father, that there is no ongoing parent-child relationship, which is defined as the relationship that ordinarily develops as a result of a parent having met, on a continuing day-to-day basis, the physical, emotional, moral and educational needs of the child, and that to allow further time for the establishment or reestablishment of the parent-child relationship would be detrimental to the best interests of the child. The court further finds that no positive, emotional aspects of the relationship between the father and the child survive.
The father has never seen, visited or lived with the child and is a stranger to him. There does not exist any relationship between the father and the child. The child has no positive memories of the father as there has never been any relationship between the father and the child.
This finding is based upon the evidence presented in this case, including the exhibits and testimony of the witnesses as discussed in this decision.
DISPOSITION
"If the trial court determines that a statutory ground for termination exists, then it proceeds to the dispositional phase. During the dispositional phase, the trial court must determine whether termination is in the best interests of the child." In re Eden F., 250 Conn. 674, 689, 741 A.2d 873 (1999); In re Quanitra M., 60 Conn.App. 96, 103, 758 A.2d 863, cert. denied, 255 Conn. 903, 762 A.2d 909 (2000). Before granting the petition for the termination of parental rights, the court must find by "clear and convincing evidence" that the "termination is in the best interest of the child" as required by General Statutes § 17a-112(j).
The court has found by clear and convincing evidence that statutory grounds exist for the termination of parental rights. The petitioner has proven by clear and convincing evidence that the parental rights of the mother should be terminated on the statutory grounds of failure to rehabilitate, and as to the father on the statutory ground of abandonment and lack of an ongoing parent-child relationship.
Pursuant to General Statutes § 17a-112(k), except in the case where termination is based on consent, in determining whether to terminate parental rights, the court shall consider and make seven written findings. These seven factors "serve simply as guidelines to the court and are not statutory prerequisites that need to be proven before termination can be ordered." In re Quanitra M., supra, 60 Conn.App. 104. The court makes the following findings required as to the mother and father, which are made upon clear and convincing evidence.
1. Finding regarding 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.The mother has been provided with ample services to facilitate the return of the child. The services were described in the exhibits entered by the court, as testified to by the DCF workers and as detailed in this decision. The services included parenting assistance, mental health assistance, case management services, housing assistance, visitation, transportation assistance, substance abuse evaluation, counseling and education assistance. The services were offered in a timely basis and were appropriate for the circumstances at hand.
The father has been unknown since the commencement of the department's involvement in this case. It was not possible to offer services for reunification to the father as he has not made himself available to receive services.
2. Finding regarding 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.DCF has made reasonable efforts to reunite the mother with the child. The court finds that the reunification efforts under all of the facts and circumstances of this case were reasonable.
The Department of Children and Families has made reasonable efforts to obtain the identity of the father but as the father's identify is unknown, the Department has been unable to make reasonable efforts to reunify the father with the child.
CT Page 8621
3. Finding regarding 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 orders. The mother and father did not fully comply with the specific steps ordered by the court. This finding is based upon the evidence presented in this case, including the exhibits and testimony of the witnesses as discussed in this decision. The mother has not made progress in her counseling, parenting counseling, has failed to maintain consistent mental health counseling, and failed to cooperate with program and services put in place to assist the mother.The father has not complied with any obligations he had regarding the child as his identity is unknown. He has never appeared in court and has never come forward.
4. Finding regarding the feelings and emotional ties of the child with respect to the child's parents, any guardian of the 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.The child is bonded with his foster parent and his young child where Xavier has resided with since August 1, 2007.
The child does not have an emotional bond to the mother. The mother has not been a significant part of the child's life since the child was removed from the care of the mother. The mother and the child have limited interaction with each other.
The child does not have an emotional bond with his unknown biological father. The court finds that no positive, emotional aspects of the relationship between the father and the child survive.
5. Finding regarding the age of the child.
The child was born on May 29, 2006 and is almost two years old.
6. Finding regarding 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 communications with the guardian or other custodian of the child. As detailed in this decision and as evidenced by the exhibits and testimony presented in this trial, the mother has been unable to adjust her circumstances, conduct or conditions to make it in the best interest of the child to return such child home in the foreseeable future.The father has made no effort to adjust his circumstances to make it in the best interest of the child to be returned to him. The father's whereabouts are unknown. He has failed to maintain any contact with the child and has not had any contact with DCF.
7. Finding regarding 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.The court finds that neither 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 either parent.
BEST INTEREST OF THE CHILD: GENERAL STATUTES § 17a-112(j)(2)
The court, by the clear and convincing evidence presented, finds that it would be in the best interest of Xavier to terminate the parental rights of the mother and the father. The court, in addition to considering the above-referenced seven factors, has considered multiple relevant factors, including the child's interests in sustained growth, development, well-being, stability, continuity of his environment, the length of stay in foster care, the nature of his relationship with the foster and biological parents, and the degree of contact maintained with his biological parents. In re Alexander C., 60 Conn.App. 555, 559, CT Page 8623 760 A.2d 532 (2000); see also In re Shyina B., 58 Conn.App. 159, 167, 752 A.2d 1139 (2000); In re Savanna M., 55 Conn.App. 807, 816, 740 A.2d 484 (1999). In addition, the court has also balanced the child's intrinsic need for stability and permanency against the benefits of maintaining a connection with his biological parents. Pamela B. v. Ment, 244 Conn. 296, 314, 709 A.2d 1089 (1998).
Both the attorney and guardian ad litem for the minor child is also requesting that this court terminate the parental rights of the mother and father.
Xavier is almost two years old. He has not been in the care and custody of his mother since May 2007, which is for a period of half of his life. Xavier has never been in the care and custody of his father. Xavier has been in foster care for a year, and with his current foster parent since August 2007. The child has bonded with his foster parent and other young child residing in the foster home. The present lack of permanency and its negative effects on this child's life is not consistent with the child's best interest. The mother has significant mental health disorders and does not have the necessary parenting skills to parent Xavier. She has not benefitted from parenting classes, lives a transient lifestyle and is often homeless. The father has never been a part of the child's life. Accordingly, the termination of the mother and father's parental rights is in the child's best interest.
ORDER
The court finds by clear and convincing evidence that, based upon the testimony and evidence presented, it would be in the child's best interest to terminate the parental rights of the mother and father at this time. The finding is made after considering the child's sense of time, the child's need for a secure and permanent environment, the relationship that the child has with his biological parents and foster parents, and the totality of the circumstances that the termination of parental rights is in the child's best interest. It is accordingly ordered that the parental rights of the mother and the father are hereby terminated as to Xavier. It is ordered that the commissioner of children and families be appointed as a statutory parent of the child for the purpose of securing an adoptive family or families, or other permanent placement of the child. The commissioner shall file with this court a written status to affect such permanent placement within thirty days following the date of this judgment and file such other reports as required by state and federal laws.
Additionally, the court having adjudicated the child neglected, finds by a fair preponderance of the evidence that commitment of the child is in the best interests of the child, and orders that Xavier be committed to the custody of the commissioner of the department of children and families.
The clerk of the Probate Court with jurisdiction over any subsequent adoptions of the child, shall notify in writing the Deputy Chief Clerk of the Superior Court for Juvenile Matters at Hartford, Connecticut, of the date when said adoption is finalized.