In re Dillon

Connecticut Superior Court Judicial District of Windham, Juvenile Matters at WillimanticDec 12, 2009
2010 Ct. Sup. 996 (Conn. Super. Ct. 2009)

Nos. W10-CP07-015356-A, W10-CP07-015357-A

December 12, 2009


MEMORANDUM OF DECISION


FOLEY, SR., JUDGE.

On October 10, 2008, the petitioner, the Commissioner of the Department of Children and Families, ("DCF"), filed a petition to terminate the parental rights of Alicia M. and Bruce M. to their children, Dillon, Daniel and Dominick. The parents have appeared and are represented by counsel. The children are represented by counsel and guardians ad litem. Neither parent claims Indian Tribal affiliation. The court is aware of no other proceedings pending in any other court regarding the custody of these children. This court has jurisdiction. All necessary parties have appeared.

On October 6, 2008, the parents entered nolo contendere pleas to neglect by reason of the children being permitted to live under conditions, circumstances and associations injurious to their well-being. On that same date the court (Graziani, J.), entered a finding of neglect.

The family has had a long and turbulent passage through the child protection corridors in the states of Maine, Massachusetts and Connecticut. The trial of the case has continued as a difficult passage, as well. The trial was originally scheduled to occur on August 12, 13 and 18. The August 1st date was unable to proceed since the respondent' mother had allegedly gone to Day Kimball Hospital with an anxiety attack. The case was continued until the 18th of August. The assistant attorney general representing the petitioner, sought an additional court date to schedule the evaluating psychologist who was unavailable for the assigned dates. The next earliest available trial date being September 29th. The court ordered an extra day on the 28th and 29th of September. The trial date for the 28th was canceled due to the Assistant Attorney General's medical condition. A substitute attorney appeared on the 29th continue the trial. Testimony of one witness was taken and the case continued to the 10th and 11th of December. On the 10th of December neither of the respondents appeared. Their counsel advised the court that they had car troubles in Rhode Island. The testimony of one state police officer was taken, subject to the right of defense counsel to recall him if necessary. The court then adjourned with direction that if the case did not finish on Friday the 11th of December, that an additional day would be scheduled for December 15, 2009. This was not necessary as the trial concluded on the seventh day assigned for testimony.

Shortly before the first day of trial, the attorney for the minor children filed a motion to have separate counsel appointed for Dillon as his desires conflicted with that of Daniel and Dominick who no longer wanted reunification with their parents. The motion for appointment of counsel was granted ex parte on August 11, 2009, three days before the trial commenced. The motion to continued the trial was denied. At the commencement of trial, all counsel, the new attorney for Dillon and the court agreed to proceed with the trial as to Daniel and Dominick, to have the new attorney sit in on the testimony and begin the trial as to Dillon at the end of September when the new attorney should have had sufficient time to review the file and meet with the child. The attorney would have the right to recall any witnesses, if necessary. The procedure was adopted by agreement and an additional court date, September was added to the existing four trial days.

On the first day of trial, 45 minutes before the commencement of the case, the mother, in a handwritten letter to the court, moved for a continuance and a dismissal of her lawyer. Her attorney, known to the court to be able, conscientious, and competent, was prepared to proceed to trial. The respondent's motion to dismiss the lawyer, appoint new counsel and request for continuance was denied. Her attorney did a vigorous and professional job in presenting her case.

The court had the opportunity to observe the physical size, appearance, tattoos, demeanor, dress and general hygiene of both respondents and to observe their reactions to the evidence as presented. The court was able to assess the credibility of the witnesses and received several hundred pages of documentary evidence. The court makes the following findings by clear and convincing evidence.

On the first day of testimony, the court heard from Andre Bessette a marital therapist; Matthew Gilbert, the investigating social worker; a clinical caseworker at the Waterford Country School, the safe home where the children were first placed; the landlady of the respondents; and the foster mother of the children. While each of the witnesses was helpful and credible, the testimony of the foster mother was urgent, sincere, completely believable and enormously compelling. Because of the day's testimony and in particular predicated upon the problems the children were suffering as a consequence of visitation with the parents, the court, at the conclusion of the testimony, knowing the case was to be continued, entered an order temporarily suspending visitation pending further order of the court.

This order was predicated upon the following preliminary findings from the days' evidence. When this case first came to the attention of the Connecticut child protection agency, the investigator learned of active or recently active child protection cases for this family in Massachusetts and in Maine. Both Maine and Massachusetts had substantiated neglect within this family in 2005 and 2006. Massachusetts substantiated neglect in August 2007, and ordered services. The parents and children left the state October 29, 2007, moving to Connecticut.

The children were living in Putnam, Connecticut for a month when the children were removed on December 3, 2007. They had not been to school in more than a month.

The earliest reports indicated that the children have lived a life of chronic medical neglect, dental neglect, educational neglect, transience, inappropriate caretakers and, by the conduct of the children themselves, the evidence supports a finding that the children have been exposed to and observed significant inappropriate sexual activities. It appears from the evidence that the children may have been exposed to and observed pornographic behavior, multiple partner sexual activity between the mother, the father and the mother's best friend (leading to the birth of two children to mother's best friend who had engaged in the menage a trois), exposure to the parents engaging in sex and all manner of sexually inappropriate conduct, language and profanity.

The evidence supports a finding that the parents were moving from state to state to avoid the state child protection agencies. When services were offered the parents failed to complete the services and fled.

The parents appear chronically unemployed, underemployed, or quite possibly illegally engaged. The parents have been evicted from most of their residences, have been frequently transient, and have absconded from landlords after months if not years of non-payment of rent, up to and including the present time. Both parents are responsible for their failure to work and to legally provide for themselves. The parents appear to be healthy; the mother is twenty-nine and father thirty-five. There are no children presently in their care, yet neither has verifiable employment. They appear to be unable to lawfully provide for themselves as of this date.

The parents' child rearing techniques have produced profoundly damaged children. Dominick was four years of age when removed. Daniel was five and Dillon was seven years of age. The children used explicit sexual language and profanity, as well as actual mimicking sexual conduct, which no child should have ever seen or heard. How the children could obtain and use such vulgar, profane and sexually explicit language and behavior at such early ages is simply unimaginable to this court. The language and expressions are of the type of language used only by the most crude, course and unrefined men and only amongst themselves. No child of tender years should ever, under any circumstances have been exposed to such language even occasionally. Yet, this morally corrupt language is used confidently and frequently by these children, suggesting that this language was commonly used within their home of origin. The psychological insult to these children has been significant.

The children when removed were dirty, burdened by head lice and were not attending school. The children exhibited no signs of discipline or boundary. They were feral. They were aggressive and uncontrollable. They had no respect for women or the law. They had extremely poor dental hygiene requiring numerous dental repairs and extractions. They were educationally deficient.

Of great concern was that the children were all very sexually inappropriate in words and conduct, with their siblings, with other children, with safe house staff and in public. The children, all three, were encopretic. This remains an on-going problem, even with counseling, two years after removal. Dominick is able to remain free from soiling himself six days a week until it is time to visit his parents. To his own distress and disappointment, Dominick soils himself, before the visits according to the foster mother.

Encopretic: the involuntary fecal soiling by children who have already been toilet trained.

Based upon this testimony and these findings, the court suspended visitation after the first day of testimony. These findings, preliminary as they were, do not address the larger issues of whether DCF provided reasonable efforts to reunify the parents or whether the parents have achieved parental competence.

The mother, Alicia M.

Alicia is twenty-eight years old. She has had six children, none of whom are in her care. Austin H., her oldest child, is 12 and after removal by DCF with the other children subject to this petition. Austin was ultimately returned to Maine where he is now in the custody of his biological father. Two other children, Destinee M. and Tyler M. are in the custody of their statutory parent, the Maine Department of Health and Human Services.

Alicia's parents were not married, they separated at pregnancy of Alicia and Alicia never met her father until she was an adult. She describes her childhood as "bad." She reports she was sexually abused by her step-father. She has never received counseling for the molestation. She reports her mother had fits of rage which caused her discomfort.

Alicia dropped out of high school in the ninth grade due to her "laziness." She has had several entry-level jobs at Denny's restaurant, Shaw's supermarket and Burger King but has stopped working due to a lack of energy. She has a minor criminal history for larceny (shoplifting) and issuing checks with insufficient funds. She was on a two-year probation at the time of the removal of the children for a larceny conviction.

Alicia become sexually involved with a Maine man, Austin's father, at age 14. She became pregnant at 15, left home and gave birth to Austin at age 16. At age 17 she ended her relationship with Austin's father due to domestic violence.

She reports suffering from anxiety and depression. Other than using marijuana during her teenage years she reports no substance abuse issues.

She later admits to more significant illegal drug use.

The father Bruce M.

Bruce was born in Massachusetts in 1974. He is presently thirty-five years of age. He is the product of an extramarital affair by his mother. He did not meet his father until he was an adult. He has three older half-siblings, all the legitimate issue of his mother and her husband. Like Alicia, he dropped out of high school because he didn't like it.

Bruce has fathered seven children, by three women. None of the children are in his care. Three children are subject to this proceeding, two children were removed and in the care of the State of Maine, and two children, Bruce, Jr., aged 13 and Kristen, aged 16, are in the care of the paternal grandmother.

Bruce's parental rights have been terminated. These are the two children he fathered by Alicia's best friend and sex partner.

Bruce reported he worked for his cousin's company, Two Guys trucking, since 1990. Bruce says the company cleans out foreclosed homes and buys and sells scrap metals. This continuous employment is unlikely since he did not maintain a continuous residence in any one state, he was in jail for a year, Alicia frequently professed he was not providing for the family financially and, DCF has been wholly unable to obtain any employment verification in the preceding two years. Bruce was asked four times throughout the case to provide proof of employment. Bruce told DCF that he was in the process of obtaining a "legitimate" job, however he has not provided proof of any employment. His present neighbors have complained that he has people coming to his apartment and leaving after very short visits at all hours of the day and night. They think he is selling drugs. He is frequently involved in cell phone conversations during DCF sponsored visits with his children, which the children see as disruptive to the visit. Alicia has recently told DCF that it is true that Bruce has been selling and using drugs and that he is engaged in a criminal enterprise to burglarize homes in Canterbury, CT. for which two of their house-mates have recently been arrested.

Bruce has a criminal record that, in part, may have been connected to Two Guys Trucking. He has a criminal record in Massachusetts and Connecticut. In Connecticut he served a year in jail for a burglary conviction in 2001. Bruce says rather cryptically, he didn't actually steal the items but took the rap for a relative to honor the relative's father.

In Massachusetts his criminal history consists of a larceny conviction in August 2007, an arrest for indecent assault and battery on a child in 1999, assault and battery 1996, assault and battery with a dangerous weapon in 1994, and harassing phone calls in 1990.

DCF inquired regarding the indecent assault charge and Bruce says it had to do with kidnapping his own child from the mother. The child's mother was contacted and said the conviction was for inappropriate touching of her children. DCF received a police report which reported disclosures by two children of inappropriate touching of his former step-children. Bruce told DCF that the woman who made the charges against him was deceased. DCF determined the woman is alive and living in Massachusetts.

Bruce has an active warrant from Massachusetts on fugitive charges. He failed to appear in court on September 24, 2008. At the time he had owed $1,300 as restitution and a probation fee of $252. Bruce had, as of December 2008, a violation of warrant charge on which he failed to appear on four occasions.

The Children Dominick:

Dominick was born on May 4, 2003. He was four years old when removed from his parents on December 3, 2007. From the moment he was removed, Dominick displayed very aggressive behavior, hitting other children and staff members of the safe home. At four years old he used racial slurs, explicit profanity and sexual innuendos. He displayed encopresis up to six times per day. He defecated in the shower, in the pool and on the floor of his bedroom.

His sexualized behavior was alarming. He attempted to kiss another child on the lips; he attempted to bite his brother's penis through his pants; he attempted to touch female staff members on their buttocks, chest and between their legs. He would say to them "Does this feel good?" "Does it feel good to touch you there?" "Is it a nice touch?" "You will like it, I promise."

During an April 2008 visit with his mother Dominick pulled his pants down while stating "look at my big ding-dong." At another visit he stuck his tongue out and licked his mother's mouth and lips. At another visit he asked his mother "do you remember when you used to come out of the shower naked and I would smack your booty?"

Dominick reported to the social worker he had seen his parents having sex "even when my dad was fat and he used to roll around."

He frequently exposed himself to other children at the safe home by pulling down his pants. He told a staff member at lunch time that "someone put a hotdog in my butt before," a few days later he was found laying on his brother Danny making humping motions. In May 2008, he told a staff member that "people have sex with kids." He put his hands down his underwear and told the staff person he was putting his fingers in his "butt hole." He then got on all fours on the bed, pulled down his pajamas exposing himself, and encouraging his brothers and staff to look at him while laughing.

Dominick has had a psychological evaluation, a forensic sexual abuse interview and individual therapy. His individual therapist has concluded that Dominick has experienced extreme trauma.

The foster mother testified and reported to DCF that while Dominick has been improving in his overall conduct, he regresses following visits with his parents, defecating in his pants, becoming aggressive, angry and unable to maintain safe boundaries.

Daniel:

Daniel was born on January 30, 2002. He was two months short of his sixth birthday at the time of removal, a year older than Dominick. He was also angry and aggressive. He used racial slurs and profane language regularly. He was familiar with rolling a "blunt." Danny reported "it's weed, it's about you get brown paper, sprinkle it in, then you roll it up and then you smoke it."

Danny had difficulty with boundaries, anger and direction. He was easily frustrated. He expressed age-inappropriate knowledge of the sex act, using explicit and profane references to sexual intercourse. Danny was found on top of Dominick on two occasions attempting to kiss him.

Danny has defecated in his pants during visits with the parents. The foster mother reports Danny urinates in bed following the visits. She has found Danny with his fingers in his anus on two recent occasions. Danny said he does it all the time "you just don't see me do it."

Danny was attempting to kiss girls at the McDonald's playscape. When the foster mother said that this was inappropriate, Danny suggested "she probably had a dildo anyway." On another occasion when Dominick burst bubble gum on his face, Danny described it as "cum on his dick." He described "my mother has a fake weenie" that she keeps in a drawer and "messages herself with it" demonstrating an up and down motion down her chest and private area.

Dillon:

Dillon is the oldest of the three children subject to this petition. He is nine years old and lives in another pre-adoptive foster home. Dillon was seven when removed. He also was encopretic. His language and conduct was the same as his brothers. He used racial slurs, foul language and was unable to maintain appropriate boundaries with the children and the staff.

A medical examination was conducted by Dr Shafts at Generations, a service provider. The examination revealed no medical basis for Dillon's encopresis. The doctor suggested that DCF focus on a trauma-based cause for Dillon's problems.

In September 2008, Dillon was found to be taking his feces out of his pants after having an accident and smearing it on the bedroom walls and under his mattress. In therapy to address these issues, Dillon reported he wished he was dead and wanted to kill himself.

Dillon is presently in therapy, he has been brought up to date on his medical treatment. His parents were unable to provide any medical records for any of the children so vaccinations were administered to bring them to appropriate levels. Dental care was a major issue. Dillon's dental group Children's Dental Associates of Norwich reported there was evidence of chronic dental neglect. Dillon had twelve cavities filled. He is now up to date medically and dentally.

On the seventh day assigned for trial, December 11, 2009, the parents were in attendance. The petitioner had recalled for the third time the principal social worker and had completed the direct examination. The petitioner indicated that upon the conclusion of her testimony the petitioner intended to rest, having produced all necessary witnesses and documents into evidence. Counsel for the mother cross-examined the social worker.

Based upon the evidence that was produced and observing the reactions and demeanor of the children's mother, the court concludes that she clearly loves her children. "The sad fact is that there is a difference between parental love and parental competence." In Re Christina M., 90 Conn.App. 565, 575 (2005).

Following the cross-examination of the social worker a recess was declared. Following the recess the parents presented to the court properly executed forms consenting to the termination of their parental rights. Having individually canvassed the parents, this court finds that they have been represented by competent counsel who was present with them during the entire trial and while they executed the consent forms. The court further finds that the consents have been knowingly and voluntarily entered with a full understanding of the legal consequences of their actions. The consents have been accepted by the court.

The Department of Child and Families (DCF) through counsel has moved to amend the petition to withdraw the non-consensual grounds and to change the grounds to consent § 17a-112(i). Without objection, the motion was granted. Thereafter the court reviewed the extensive notes of testimony, the social studies for termination of parental rights as well as other documents marked in evidence. The court finds upon this clear and convincing evidence that it would be in the best interest of the children to terminate the parental rights at this time.

Mandatory findings required by § 17a-112(k) are specifically exempted in the case of termination of parental rights based upon the consent of the parents.

Disposition:

Daniel and Dominick are presently well adjusted to their current pre-adoptive foster home. The foster parents wish to adopt the boys. Both boys are getting education assistance and are doing well socially and academically in school. They are current on all medical and dental needs. They both continue to have special needs and require exceptional parenting. The foster parents are providing the care, structure, stability and nurturance necessary to their successful adjustment.

Dillon has been recently removed from the home where Daniel and Dominick are residing because of his behavioral issues. The social worker reports that he is gradually adjusting to his new pre-adoptive foster family. He wants to be adopted. The children's attorneys and the children's guardian ad litem have all affirmed the fact that while they all miss their parents, in particular their mother, even the children recognize a need to move on in a more stable and structured environment. They all wish to be adopted.

The court concludes that the termination of the parent's rights is clearly and convincingly in the children's best interest. The court notes with approval that the permanency plans call for adoption of the children by the present foster parents. The permanency plans previously filed which call for termination of parental rights and adoption are approved. The court finds that DCF has used reasonable efforts to effectuate the permanency plans. Objections previously filed by the respondents to the permanency plans are over-ruled.

ORDERS:

It is accordingly ordered that the parental rights of Alicia M. and Bruce M. are terminated as to all three children based upon their consent. The Commissioner of the Department of Children and Families is appointed the statutory parent. A permanency plan shall be submitted within thirty days and such other reports as are required by law shall be filed. DCF is directed to effectuate the adoption with all deliberate speed.

The Clerk of the Probate Court with jurisdiction over any subsequent adoption of the children shall notify in writing the Deputy Chief Clerk of the Superior Court for Juvenile Matters at Willimantic, 81 Columbia Avenue, Willimantic, CT, 06226 of the date when said adoptions are finalized.

Judgment may enter accordingly.