Opinion
Nos. H14CP060088009-A, H14-CP06-0088010-A, H14-CP06-008811-A
May 7, 2009
MEMORANDUM OF DECISION
These are termination of parental rights ("TPR") cases. Although the Superior Court for Juvenile Matters ("SCJ") at Hartford on August 28, 2008, found that the commissioner of children and families ("DCF") had made reasonable efforts to effectuate the proposed permanency plans of termination of parental rights and adoption ("TPR"), DCF's motions for approval of such goals of such permanency plans it filed on May 30, 2008, and the parents' separate objections filed June 23, 2008, thereto were consolidated for hearing with the TPR petitions.
The TPR petitions and the motions for review of permanency plan were heard at the Child Protection Session of the Superior Court ("CPS") on February 23, 24 and 25, 2009. On each such day of the hearing the mother of Giovanni C., Jr. ("Giovanni"), Wesley C. ("Wesley") and Ravan C. ("Ravan") and her attorney were present. The father of such children and his attorney also were present. The attorney for each of the children, an assistant attorney general representing the commissioner of the department of children and families ("DCF") and a representative of DCF were present.
Although these matters may sometimes be referred to as trials, in the Practice Book they are defined as hearings. See Practice Book § 26-1: . . . (1) "Hearing" means an activity of the court on the record in the presence of a judicial authority and shall include (1) "Adjudicatory hearing": A court hearing to determine the validity of the facts alleged in a petition or information to establish thereby the judicial authority's jurisdiction to decide the matter which is the subject of the petition or information; . . . (3) "Dispositive hearing": The judicial authority's jurisdiction to adjudicate the matter which is the subject of the petition or information having been established, a court hearing in which the judicial authority, after considering the social study or predispositional study and the total circumstances of the child, orders whatever action is in the best interests of the child and, where applicable, the community. In the discretion of the judicial authority, evidence concerning adjudication and disposition may be presented in a single hearing.
Practice Book § 32a-2(a) provides that all such hearings are essentially civil proceedings but that they ". . . shall at all times be as informal as the requirements of due process and fairness permit . . ."
All hearings are essentially civil proceedings except where otherwise provided by statute. Testimony may be given in narrative form and the proceedings shall at all times be as informal as the requirements of due process and fairness permit.
Ravan is sometimes spelled in the papers as "Raven" but the correct spelling is "Ravan."
The parties requested and were permitted to file post-hearing briefs on or before April 24, 2009 (as extended pursuant to the parties' request). The court has carefully reviewed and considered the contents of each such brief.
FACTS:
The following facts have been proved by clear and convincing evidence:
Practice Book § 32a-3 provides: . . . (b) The standard of proof applied in a decision to terminate parental rights or a finding that efforts to reunify a parent with a child are no longer appropriate, is clear and convincing evidence.
1. The mother was born in October 1974, is thirty-four years old and has given birth to five children. Her boyfriend Dan T___ (aka Daniel A___, see exhibit 12, 4) is currently twenty-two or twenty-three years old, and he moved in with her in May 2008. (Exhibit H, 10.) Reverend _______, who testified at trial (February 23, 2009, transcript, 94-100) is the father of the mother's boyfriend ( id., 95, 100) and the mother works as secretary for such church (id.), which church was started in January 2009 ( id., 94). The mother has her two older twin daughters with her every other weekend at such church. Id., 100.
Such witness referred in his testimony to "my other daughter-in-law Id., 100. However, there was no direct evidence that the mother and the boyfriend were or are legally married.
2. The father of Giovanni, Wesley and Ravan ("the father") was born in 1978.
3. The two twin daughters of the mother who are older half-siblings of Giovanni, Wesley and Ravan were born in 1996.
4. Giovanni was born in December 2000.
5. Wesley was born in February 2002.
6. Ravan was born in September 2003.
7. The father has a lengthy history of alcohol abuse and violent behavior. On July 7, 2005, DCF received from the Farmington Police a report that the children were exposed to violence by the father ("emotional neglect"). (Exhibit 1, 1-2.) On such date the Farmington Police were called to the family home after the father got into an argument with a neighbor. Id., 2. The father and the neighbor had a history of disputes. Id. The father was removed by the police from the home while he was "kicking and screaming." Id. DCF substantiated emotional neglect because of the negative impact on the children that the father's behavior had when he was being arrested. Id. The family was referred to counseling at Counseling Affiliates and in August 2005, DCF closed its case. Id.
8. On June 26, 2006, DCF received from the police another report of violent behavior in front of the children, which DCF interpreted as emotional neglect. Id. The police were called to the family's home because of a domestic dispute between the mother and the father. Id. The father was reported to have been "yelling at mother and banging the kitchen cabinets." Id. The father was found to be intoxicated. Id. He was arrested on this date for breach of peace. Id. The police report "stated that the children were crying and visibly upset by father's behavior." Id. The Hartford Superior Court issued a criminal protective order that prohibited any violence between the father and the mother. Id.
9. On August 4, 2006, the father was interviewed by a DCF investigative social worker. During such interview the father "admitted to screaming and yelling and slamming cabinets on the date of his arrest." Id. The father denied being intoxicated. Id. He claimed that "he consumed one shot and three beers." Id. The father claimed (untruthfully) that he was only a social drinker. Id. When the father was asked to submit to a substance abuse evaluation and drug screen, he refused to do so. Id. The father did admit to the investigative social worker that "the children were crying during the [June 26, 2006] incident, but he failed to see the emotional toll his behavior took on the children." Id.
10. Also on August 4, 2006, such DCF investigative social worker interviewed the mother's older daughters, who were nine years old when the incident occurred and ten years old when they were interviewed. Id. K_____ claimed that she did not remember what happened. Id. S____ said that "she remembered hearing her mother and [the father] arguing, but she did not remember what the argument was about." Id. S. also said that "she heard the cabinets and tables getting slammed." Id. The investigative social worker reported that S___ "admitted to being scared at the time of the incident." Id. He also reported that "[b]oth girls admitted to crying during the incident. The girls stated that they had never seen or experienced anything like that before." Id.
11. On August 7, 2006, the mother met with such investigative social worker. The mother admitted to such worker that she had gotten into an argument with the father. Id. The mother stated that the argument was about "a personal issue." Id. The worker reported that the mother "acknowledged that the children were crying, but [she] denied that the argument had an emotional impact on the children." Id. The mother stated to such worker that "the children were crying because they never see arguing like this." Id. The mother admitted that "the children were crying because they were afraid and scared." Id. The mother told such worker that she sent the children to their maternal grandparents' (maternal grandmother's and step-grandfather's) home in Massachusetts "because she did not want them around the situation." Id., 2-3. The mother (untruthfully) denied that she was involved with domestic violence and she refused to attend a domestic violence victims' program recommended by DCF. Id., 3. She told the worker "that if she were ever in that situation she would take the necessary steps to safeguard herself and her children." Id.
12. On August 21, 2006, the social worker then assigned to the family (the author of exhibit 1) met with mother and father. Id. Both the mother and the father (untruthfully) denied any issues of substance abuse or domestic violence. The mother attempted to minimize to such worker the June 26, 2006, incident. Id. The mother (untruthfully) told such worker "that the only reason her children were crying during the argument was because they were on their way to maternal grandparent's home and that they were ready to go." Id. DCF offered substance abuse and domestic violence services to the mother and the father but they refused services and told the worker "that they did not have any problems." Id. Such worker asked that the mother and the father participate in an evaluation to determine if there were indications of substance abuse and domestic violence problems. Id. The worker noted that both the mother and the father told her "that they did not have time to attend services and did not have child care." Id.
13. On September 24, 2006, the mother and the father were arrested by Bristol police. Id. Such police had been called to the family home. Id. After investigation, a Bristol police officer contacted the DCF "hotline." Id. The mother and the father reportedly had attempted "to stab each other with a kitchen knife because of allegations of infidelity on the part of father." Id. Giovanni, Wesley and Ravan were home at the time of the incident. Id. The worker determined that there was no available relative placement in the State of Connecticut for the children. Id. On September 24, 2006, the last day such children were in the mother's and the father's care and custody, Giovanni was five, Wesley was four and Ravan was three years old. On February 25, 2009, the last day of trial, Giovanni was eight, Wesley was six, and Ravan was five years old.
Such hotline is provided for in General Statutes § 17a-103a: The Commissioner of Children and Families shall provide a telephone hotline for child abuse that shall be dedicated to receive reports of child abuse. Such hotline shall accept all reports of abuse or neglect regardless of the relationship of the alleged perpetrator to the child who is the alleged victim and regardless of the alleged perpetrators affiliation with any organization or other entity in any capacity. The commissioner shall classify and evaluate all reports pursuant to the provisions of section 17a-101g.
14. The police report of the incident was admitted as full exhibit 16. It contains the following descriptions of the incident based on the statements of the respondent parents:
On 9/24/06, at about 0606 hours, Sgt. H___ and I were dispatched to the Bristol Hospital ER for a stabbing victim. The incident was reported to have taken place [at the home of the parents and the children]. Upon arrival I spoke to [the father]. [The father] stated that he arrived home at about midnight. His girlfriend, [the mother] was upset and accused him of cheating on her. A verbal argument ensued and it escalated to her spitting at him and throwing a beer at him. He did admit to throwing a beer at her in retaliation. She continued to `nag' at him and accusing him of cheating on her. [The father] said he could not take it any more and grabbed a knife with the intention of hurting her. [The mother] was able to get the knife from him and stabbed him. [The father] then left the house. [The father] stated he did not want [the mother] arrested and refused to give a statement.
[The father] suffered a minor cut to the top of his left shoulder and to the left side of his face near the corner of his eye. He also suffered a stab wound to the middle of his back. The wound was located just to the right of his spine and between his shoulder blades. His wounds were not considered life threatening.
Sgt. H___ and I then went to [the family home] to interview [the mother]. Upon checking the exterior of the house, a butcher knife was located in the rear of the house in the Southwest corner of the yard. The blade contained a blood like substance on it. Sgt. H___ photographed the knife, it was collected as evidence and secured in my cruiser.
Contact was made with [the mother]. She answered the door wearing an blood covered t-shirt. She stated the dried blood belonged to [the father]. She then provided the following details about the incident. She said . . . on 9/24/06, between 1:30 a.m. and 2:00 a.m. [the father] came home after a night out drinking. She asked him why he came home so late. He told her he was out with "Ingrid" at a bar. [The mother] and [the father] then sat outside talking about him not calling. She did not remember how the talking turned to arguing but at some point they were arguing. He was calling her a "whore" and that she was cheating on him. The verbal argument lasted for some time. Suddenly, [the father] threw a bamboo plant at her. She told him to leave, he refused and attacked her. He punched her on her face, pulled her hair and burned her face with a cigarette. While he was doing this, he stated he was going to kill her and that she was nothing but a "fat bitch." [The mother] was able to get away from him and went outside. At that point her son, Giovanni . . . came downstairs and asked his father what was wrong. [The father] told him "nothing," that [the mother] was a "whore" and that he was taking them to Puerto Rico. [The mother] brought her son back upstairs to bed and went back outside. [The father] came outside and they continued to argue. Giovanni . . . came back downstairs. [The father] told him to tell [the mother] to shut up and that she was a "whore." Giovanni . . . did say that to her. [The father] then took him upstairs. [The mother] went up stairs and they continued to argue.
[The mother] then left and went to 7-Eleven on Riverside Ave. She bought cigarettes and went back to the house. When she got home, [the father] was outside and their 3 kids were awake. The kids were sent inside and told to go to their room. [The mother] went upstairs to check on them. She then went downstairs and [the father] and her continued to argue. [The father] then grabbed a knife and waved it at her while telling her that he was going to kill her. He also made a slashing motion towards her neck. [The mother] told him he was not going to kill her and grabbed his hand trying to keep the knife away from her. At some point [the mother] stabbed him while they were both holding the knife. They continued to wrestle on the ground and he bit her several times. They were still both holding the knife as it was thrashing about. [The father] yelled out, "You stabbed me!" They both refused to let go of the knife and decided to throw it outside together. They both carried the knife to the back porch and threw it. They continued to yell at each other for a short time then he left. [The mother] then went to bed.
[The mother] said she was not able to call the police because she did not have a phone. She did not go to a neighbor's house because it was too early in the morning. She also did not report anything when she went to 7-Eleven. She stated she did not want to make matters worse and hoped it would "[a]ll go away." She was not sure if she wanted to give a written statement of the incident.
[The mother] received several bite marks on her arms, scratches on her face and a small red mark on her cheek where she said [the father] burned her. She was offered medical attention but refused. Sgt. H___ took several photographs of her injuries using a 35 mm camera.
[The mother] and [the father] have been together for 10 years. They have 3 children in common, Giovanni . . . age 5, Wesley . . . age 4, and Ravan . . . age 2. The children were home during the incident but not present during the assaults. [The mother] stated they have had several domestics in the past that involved violence, most went unreported. Four incidents resulted in [the father] be[ing] arrested.
Upon entering the home, there was blood on the floor, refrigerator and stove. There was broken glass, small stones, bamboo plants and water scattered about the floor. It was evident that . . . violence did occur and injuries were sustained.
NCIC check showed no wants or warrants for [the father] or [the mother]. A protective order was listed naming [the mother] as the victim and [the father] as the defendant. The order stated [the father] was to refrain from threatening, harassing, stalking, assaulting, molesting, sexually assaulting or attacking [the mother.] A copy of the order is attached.
[The mother] was placed under arrest and brought to the station. Sgt. H___ stayed at the house and notified DCF who sent a case worker out. Sgt. H___ was relieved by Officer B. who stayed at the scene until DCF arrived.
. . .
After being processed [the mother] stated she was willing to give a written statement. A waiver of rights form was completed and a typed statement was taken from her . . .
15. On September 24, 2006, DCF invoked a ninety-six-hour hold on behalf of the children and placed them in DCF care. (Exhibit 1, 3.) Neither of the parents has cared for or had custody of any of the children since September 24, 2006, and they have remained in DCF care since this date.
16. On September 27, 2006, DCF filed in the SCJM petitions of neglect and ex parte motions for temporary custody of each of the children. Id. The above-described incident was the basis for DCF to file the petitions and the ex parte motions. DCF believed that the continuing altercation occurred in front of the children. Id.
17. The mother was arrested for assault in the second degree and breach of peace in the second degree. (Exhibits 1, 14 and 16.) The father was arrested for breach of peace in the second degree, assault in the third degree, violation of a protective order, threatening in the second degree and assault in the second degree. Id. On April 3, 2007, the father pled guilty to the offense of violation of a protective order and he was sentenced to two years of incarceration with a release date of October 25, 2008. (Exhibit 14, 2.) He was also concurrently sentenced on the offense of assault in the second degree and two violations of probation to two years of incarceration. Id. On December 22, 2005, the father had previously been sentenced for the offense of assaulting a police officer to four years of incarceration, execution of sentence suspended, four years of probation and concurrently for the offense of assault in the third degree to one year of incarceration, execution of sentence suspended, three years of probation. Id.
18. On September 25, 2006, each of the parents was arraigned in the Superior Court for Criminal Matters. Such court entered a protective order in favor of each parent pending the criminal proceedings. (Exhibit 15.) Each parent, inter alia, was prohibited from any contact in any manner with the other parent. Id.
19. DCF could not find any suitable relative caretakers at the time of the parents' arrest and pre-trial incarceration. (The maternal step-grandfather has a history of criminal and alcohol-related issues.)
20. On September 27, 2006, the court granted ex parte orders of temporary custody and issued preliminary specific steps to each parent to facilitate possible reunification.
21. On October 6, 2006, each such order was sustained.
22. On May 7, 2007, each of the children was adjudicated neglected and each was committed to the care, custody and guardianship of DCF.
23. On August 29, 2007, the court issued final specific steps to each parent to facilitate possible reunification.
24. On May 23, 2008, DCF filed its petitions to terminate the rights of each parent to each child. In each such TPR petition DCF alleged that in violation of General Statutes § 17a-112(j)(3)(B), the mother and father of Giovanni, Wesley and Ravan failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of each of them, the mother and/or the father could assume a responsible position in each of their lives. In the summary of facts accompanying each petition, DCF alleged, inter alia, that:
Practice Book § 35a-7A(a) provides: 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.
In Ground (B) cases, a court may consider events subsequent to the filing date of the petitions, but it does not have to do so. In re Jennifer W., 75 Conn.App. 485, 494-95 (2003); In re Selena O., 104 Conn.App. 635, 646 (2007); In re Nelmarie O., 97 Conn.App. 624, 628, 905 A.2d 706 (2006); In re Stanley D., 61 Conn.App. 224, 230 (2000); and In re Amber B., 56 Conn.App. 776, 785, 746 A.2d 222 (2000).
The social study in support of termination of parental rights sets forth the parents' circumstances and, inter alia, the mother's failure to complete services necessary for reunificiation prior to and as of DCF's May 23, 2008, filing of the TPR petitions.
1. Reasonable efforts to reunify Giovanni, Wesley, and Raven with their parents were not successful because the parents had not completed their parenting classes and individual therapy, and they failed "to meet court ordered specific steps in a timely manner." Also, the mother had not engaged in family therapy. The father "failed to engage in a substance abuse program and a domestic violence program." Also, the father had been incarcerated since the time of the children's commitment (approximately one year prior to the TPR petitions).
2. The mother was unwilling or unable to benefit from reunification services because she had "been non-compliant with addressing her lack of parenting skills, [and] her individual and family issues. [The mother] lack[ed] the motivation and skills necessary to improve her current living situation. [The mother] continue[d] to show a limited level of understanding of her children's needs."
The father was "unwilling or unable to benefit from reunification services because he is not actively involved with his children. [The father] is currently incarcerated . . ."
"4. The presenting problems with this family were domestic violence, substance abuse, mental health issues, inadequate parenting skills and criminal activity."
5. DCF made the "following reasonable and active efforts were made to prevent removal of the children and reunify them with their . . . mother . . .: CT Page 7757 Domestic Violence counseling through Prudence Crandall Center in Bristol, CT and the YWCA in Springfield, MA.
Family Therapy through North Central Counseling.
Individual and Family Therapy through Family Services in Stafford Springs, CT.
Reunification Services through Wheeler Clinic.
[The mother] was given the opportunity to visit her children regularly."
6. The father was offered through the Department of Correction "parenting, substance abuse, domestic violence and family violence programs. To date he has not completed any of these programs."
The mother reported to DCF that she was attending parenting classes. She did not provide DCF any proof of her attendance. The mother attended one family counseling session with her children at North Central Counseling Center in June 2007 and then stopped attending. In April 2008, the mother was referred to Family Services for individual and family therapy, but she "failed to follow through."
With respect to visitation, the mother had weekly visits each Sunday for two hours. "The visits took place in the community." The mother "missed a few visits over the last year" and was often late for the visits when she did attend them. During the visits the mother "ha[d] a tendency to verbally engage DCF staff about the details of her case and at times [to] berate staff. [The mother] often ha[d] to be redirected as to the purpose of the visit and the needs of her children." In March 2008, the court suspended the mother's visits with Wesley and Ravan "due to the children's behavior after visits." Although the mother was allowed to continue to visit with Giovanni, she failed to do so. On March 30, 2008, the weekly Sunday two-hour visits were reinstated. In May 2008, the mother's visits were scheduled every other Sunday.
DCF did not believe that the mother would "be able to assume a responsible position in the lives of her children within a reasonable time period."
Because of his continuing incarceration, the father was unable to participate in services required by the specific steps and offered by DCF, including individual, parenting and family counseling, but the Department of Correction offered parent, substance abuse, domestic violence and family violence programs that the father had not completed. Also the father was unable to participate in recommended treatment services such as Wheeler Clinic DOVE Program and/or an equivalent program, and in the Wheeler Clinic substance abuse treatment program and/or an equivalent program, and while he was incarcerated the father had not participated in any DOC domestic violence or substance abuse programs. Because of his incarceration the father was unable to secure and/or maintain adequate housing and legal income, and he had not provided financial support for his children. With respect to visitation, the children's counselor recommended that the children not have visits with the father until he was released from prison.
DCF believed that the father was not able to assume a responsible position in the lives of his children within a reasonable time period.
The foregoing DCF allegations concerning the father and the mother are supported by the credible evidence.
25. On May 30, 2008, DCF filed motions to review the permanency plan for each child. The goal of each plan was the termination of parental rights and adoption.
26. On June 23, 2008, each parent filed an objection to each such permanency plan. The mother's objection alleged that she had obtained stable housing, that she was gainfully employed, that she had complied with the court-ordered specific steps, that reunification with her children was in their best interest, and that "[c]ontinued delay in reunification ha[d] contributed to the problems her children ha[d] exhibited in placement." The father's objection contained the statement that the father wanted the children returned to the mother.
27. From September 2008, through February 2009, the mother missed twelve of twenty-two weekly scheduled visits. (Exhibit 22, 5.) Dr. F____, the psychologist retained by the mother, was not aware of this when he evaluated the mother. At such visits with the children present the mother continued to voice her anger and frustration with DCF. Id.
28. As of February 2009, the mother and her boyfriend were residing in a small two-bedroom apartment. Id., 6. The mother had part-time employment. Id. The mother was attending individual therapy but she had not been consistent in her attendance. Id. Her daughters continued to reside with their father and his parents as they had since September 2006.
29. As of February 2009, the father resided out-of-state with a relative and he was not employed. Id. The father reported that he was attempting to address his substance abuse and anger management issues. Id., 6-7. The father has not seen the children since his September 2006, incarceration. Id., 7. The current worker reported that "[a]ll of the children appear to be fearful of the father." Id. As early as March 9, 2007, a licensed clinical social worker from Wheeler Clinic recommended that the children not visit the father while he was incarcerated because the September 24, 2006, incident had resulted in PTSD symptoms including difficulty falling asleep, angry outbursts, hypervigilance, and startle responses to movement and noise. They had difficulty connecting to caregivers and receiving nurturance from adults. The younger boys connected their angry outbursts to the event they witnessed at home.
(Exhibit 9.)
30. On February 4 and February 17, 2009, approximately nine months after DCF filed the TPR petitions, Dr. F____, a psychologist selected by the mother, performed an evaluation of the mother and children. In his report (exhibit H), Dr. F____ set forth the mother's admissions to him about the poor choices she made to live for more than a decade with the two fathers of her five children. Id., 2-3. The father's problems were evident to her and her family before any of the children were born, but she continued to reside with him and eventually to have three children with him. Id. During her pregnancy with Giovanni, her family members urged her to leave him. Id. The father did not support her or the children, and spent most of his money partying. Id., 4. The mother stated that she "had trouble remembering details, and [she] wondered whether all the times he had hit her in the head had contributed to some of her memory problems." Id.
The mother admitted to the psychologist that if her parents visited her and the older half-siblings, she would hide the "bumps and bruises" inflicted on her by the father. Id. She also admitted that "her children always saw the marks on her, and knew where they came from." Id. She further admitted that the children "heard the sounds . . . of . . . violence." Id. When such violence was being inflicted on her and negatively impacting the children, she was in denial about such impact on them. Id. Such violence included "black eyes . . . [being] hit . . . on the head numerous times . . ." and a broken beer bottle thrown in her face, being kicked, being thrown down the stairs and the father kicking doors open and "continuing to rant and rave as he did." Id., 4-5. The father also threatened "to come after her, to kill her, to kill her and the kids, and to kill her family members." Id., 6. The father slept when she was at work and he was supposed to be watching the children, but she let that situation continue. Id.
When they lived in an apartment prior to the one from which the children were removed, the neighbors telephoned "the police several times to complain about their noise from their arguments and domestic violence." Id., 7.
The mother admitted to the psychologist that she blamed DCF instead of herself during the crucial period after the children were removed from her and it took her a long time after such removal to take "full responsibility for her own mistakes . . ." and "for putting her children in danger. She understood that it took her a long time to realize what she had done and why . . . Id., 10. Unfortunately, during such long time the children were bonding to other parent figures who cared for them on a daily basis and the mother made herself unavailable to parent such children. However, Dr. F___ reported that the boys still recognize and enjoy the mother as a parent figure and are very bonded to her. Id., 12-13. The boys also have a bond with the paternal step-grandfather and their older half-siblings. Id. The psychologist reported that "[t]he observed interaction was consistently excellent. Close, mutually affectionate relationships were observed between mother and all three boys. The boys were never distant or reserved, and they clearly made the most of their time with their mother." Id., 13.
Ms. H., the therapist for Wesley and Ravan (and at times for Giovanni) testified about her attempt to engage the mother in being the care giver for the trauma focused cognitive behavioral therapy ("CBT") she was providing to Wesley and Ravan. (February 23, 2009, transcript, 40-42.) Among the reasons the mother failed to fulfill the parenting role as care giver for such CBT was that the mother "was pretty outspoken about how upset she was at DCF, and she cried in my office. And another part of that is that the caregiver needs to manage their affect or their ability to contain themselves so the child feels safe." Id., 41. Ms. H. was aware that the DCF permanency plan at the time of the CBT was reunification with the mother, why is why she wanted to work with the mother. Id., 59.
Wesley's and Ravan's foster mother, who was very familiar with their issues, problems and needs (February 24, 2009, transcript, 58-82), performed such care giver role. She also described why Wesley and Ravan needed to be placed in a therapeutic foster home after being removed from the parents.
Dr. F_____, the psychologist selected by the mother, described her as follows: [The mother] is the 34-year-old mother of five children. Her youngest three were by her relationship with [the father], and were the subjects of the current court proceedings. In terms of problems in her childhood, she identified her parents' divorce when she was very young, and several years of alcohol abuse by her stepfather. Although she otherwise depicted her childhood as a good one, it did not seem to have taught her good judgment or helped her create a very good opinion of herself. While she had a strong work ethic and had always supported herself as an adult, her expectations for her male partners were too low and her judgment extremely flawed.
The combination of these qualities had led [the mother] into two bad relationships. The first resulted in her having twins with a man who was irresponsible and immature. She ended this relationship soon after the twins were born, and until recently, she had been their single parent. The twins currently resided with their father and paternal grandparents, and [the mother] had regular contact with them.
Her second and far worse relationship had been with [the father]. He was poorly educated, selfish, irresponsible, cruel, controlling and physically abusive. It had taken far too long for [the mother] to finally end her relationship with [the father]. By the time he went to prison for an assault on her, she had been repeatedly physically battered, and her children had been indirectly exposed to a substantial amount of this abuse.
In 9-06, the couple had a final incident of domestic violence. Both parents were arrested, after which [the father] was incarcerated, and [the mother] was required to attend domestic violence group sessions. Her children were removed from her care, and she returned to her parents' home in S_____, Massachusetts for their support. She completed the DV sessions and otherwise satisfied the conditions of the criminal court.
[The mother] had always supported the family, including her twins for the most part, as well as the younger children and herself. [The father] worked on and off but never contributed reliably to the family's income. When [the father] was sent to prison, [the mother] was left without a home or car, and she relied on her parents' help. She later went to live with a cousin.
As [the mother] struggled to get back on her feet, she tried to juggle work, housing, required contact with DCF, and required counseling and domestic violence services. She missed some sessions with her individual counselor, due to transportation problems. Because her counselor wanted her to complete some individual counseling before including her in the children's trauma counseling, [the mother] was then unable to participate in this latter service. She had attended counseling on and off and had recently returned to a different counselor. Although she certainly could have used more individual counseling and DV group participation, she showed better understanding of domestic violence, took responsibility for her own mistakes and problems, and acknowledged her responsibility in exposing the children to violence in the home.
[The mother] had conscientiously visited her children as often as was allowed. In her evaluation, Dr. R____ noted very good interaction and established relationships between the children and their mother. The children were noted to display distress and behavior problems at times after visits with their mother, and mother's visits had been suspended for two short periods of time. It should be noted that with children who maintained strong emotional connections to a parent and expressed their desire to return to her care, this distress may result from the difficulty of separating from their mother after visits, as well as their awareness of their mother's frustration about reunification. As noted in Dr. R___'s report, all three children expressed their desires to return to their mother's care
[The mother] had always managed on limited resources, largely though her own hard work. She had chosen two very poor candidates for fatherhood, and had stayed in her relationship with [the father] years too long. It had been a difficult process for her to get back on her feet and work toward reunification, and she had participated in less than an optimal amount of counseling. However, there were indications that [the mother] had matured, developed better understanding of her own problems and of domestic violence in relationships, and was less likely to enter another poor relationship.
[Giovanni] was not in a pre-adoptive home, and expressed his desire to return to his mother's care. His adoption would require that he separate from foster parents and begin anew with a stranger. He was basically a well-behaved, adequately functioning child. [Wesley and Ravan] were in a pre-adoptive home, where they had adjusted well. One had some special needs, but again, both had expressed their desires to return to their mother's care. The children had been in a limbo state as long as would be recommended, and needed a permanency plan. However, at this point, [the mother] had maintained a commitment to her three children, and showed at least basic qualifications for reunification. She could benefit from more counseling and domestic violence services. However, she had maintained her income and housing, including a residence with room for the children while she still expected the children to return to live with her. She had been involved in a subsequent relationship which did not demonstrate the problems seen in her previous ones. She continued to have the support of her mother and stepfather, she had a counselor she had established a relationship with, and she continued to visit the children as often as allowed.
Consistent with Dr. R____'s observation, [the mother] continued to display excellent interaction and close relationships with all three boys. She involved her daughters and her father regularly in her scheduled visits, and attended her visits consistently as allowed. The boys showed close, established relationships with her, all three boys called her mommy, and they lingered unhappily when it was time for them to leave their visit with their mother. They continued to call [the mother] "mommy," and show strong attachments to her.
It would therefore be recommended that the court consider delaying the termination of parental rights action, to allow [the mother] the opportunity to participate in a short-term, intensive reunification program, toward the goal of returning all three boys to her care in time for the 09-10 school year.
Id., 14-15.
However, Dr. F___, who testified on February 24, 2009, stated that "for better or worse" he "softened" the above recommendation because
[t]he children have certainly been in a limbo state in a placement longer than is recommended for children this young. And that could have been said a year ago.
(February 24, 2009, transcript, 118.)
Dr. F_____ testified that the mother had the mental ability to handle parenting responsibilities. However, the mother's verbal skills were lower than other skills and she needed a "hands on" type of learning approach, e. g., a parent aide rather than classroom teaching. He agreed with the reports he reviewed that the mother "very much" fit the profile of a domestic violence victim. He stated that it will take the mother a considerable amount of time to rebuild herself, her life, and her dignity. Dr. F. stated that the mother's ability to trust people, including but not limited to DCF staff, was diminished. It was alliance with someone who has taken her children away (although other parents have done so and successfully reunited with their children). Dr. F____ said that the mother acknowledged that she should never have kept her children subject to the domestic violence of her and the father as long as she did. She also acknowledged that the children saw her with "marks" on her and were frightened, that she had failed in her responsibility to the children, and the children were harmed. She was responsible for the children's need for trauma treatment and counseling.
During his testimony he was not asked about and he did not explain why the mother's older twin daughters, who had not been the subject of DCF proceedings, continued to live with their biological father and paternal grandmother (to whom the mother voluntarily transferred them on September 25, 2006, when she was temporarily incarcerated) instead of with the mother despite her physical availability to care for them during and after October 2006.
The mother rejected DCF's efforts to provide such hands-on approach in supervised visitation.
Dr. F_____ testified that the mother had "elevated levels in areas of the testing — specifically issues of anger, avoidance, denial, problems, and interpersonal mistrust." (February 24, 2009, transcript, 119.) Although the mother, because of her life experiences may have had a basis understandable to Dr. F____ for her general inability to trust other adults, such inability to trust is among the reasons the mother was unable, when the need for reunification to occur was crucial from the children's perspective because they were in the process of bonding with new parent figures, to work as a functioning parent, and to cooperate and work with DCF and the children's therapists in family and trauma counseling.
Dr. F______ was not present in court when the mother's witness, who views the mother as a daughter-in-law, described the mother's current difficulties in coping at some church meetings: Well, [the mother], when she goes to a meeting and it didn't go exactly the way she feels it should [have], maybe she didn't say the right thing or maybe she didn't receive the right answer, she'll call me and I'll just, kind of, just take the discouragement away from her and encourage her that . . . it's all going to be better . . .
(February 23, 2009, transcript, page 97.) Also, such witness seemed to describe the mother's continuing feelings of depression ostensibly because her children were not with her. Id.
Dr. F____ described the interaction he witnessed between the mother and the children as "excellent," that there were "very close relationships" and the children "obviously enjoyed being with her."
Dr. F____ acknowledged that if the mother had missed twelve out of her last twenty-two visits, that was less consistency than he was led to believe and she was in a less favorable parenting position. He also noted that such missed visitation was upsetting to the children and inconsiderate of her to such children.
The mother untruthfully told Dr. F______ that she "had conscientiously visited her children as often as was allowed." See page 19, supra.
Dr. F______ testified that the mother needed more individual counseling and participation in domestic violence groups, even if there was not to be reunification. Although the children had been out of the mother's care for approximately twenty-eight months when he evaluated the mother, his recommendation was that the court consider a further delay so the mother could participate in an intensive short-term program to see if she should could work on her existing issues to the point where she was rehabilitated. Even if this occurred, he did not want the children removed from their current stable home environments, and he stated that even if reunification efforts continued the court ultimately must determine if the benefits to the children from removal outweighed the detriments caused by such removal.
Dr. F___ stated that the older half-sibling twin daughters went to stay with the father and the paternal grandmother about one and one-half years ago, when in reality that occurred approximately twenty-nine months before the trial. He acknowledged that the father and the paternal grandparents offered a better opportunity for such girls. Prior to September 24, 2006, such girls were also exposed to and affected by continuing domestic violence between the mother and the father (and as with the three boys, the mother failed to act to protect them from such continuing domestic violence).
Dr. F___'s testimony about when the mother ceased to have primary custody of her daughters was incorrect as noted in statements in his written report: After the incident in 9-06, knowing she was going to move to Massachusetts but not sure where she would end up, she asked the twin's father to take custody of the girls and enroll them in school. He agreed to do this, and return the girls to her in 12-06. By then she had found her apartment, but the girls' father did not want them moving from the better schools in Agawam to the housing project and Springfield schools. Mr. C____ lived with his parents in Agawam, and his parents were basically taking care of the children. His parents never liked [the mother], and all her problems made it easier for them to hang on to the girls. She spoke to the girls, and basically asked them what they wanted. The girls told her they wanted to stay in Agawam, and see mom for a visit during the week and on weekends. She and K____'s mother made an agreement, with provisions for visiting, her involvement in their education, etc. The agreement had worked out pretty well.
(Exhibit H, 9.)
During his evaluation, Dr. F_____ was aware of the mother's relationship with her now twenty-two or twenty-three year old boyfriend, id., 10, but he did not comment on it. The mother is thirty-four years old. The mother's older twin daughters are currently thirteen years old. (Exhibit 2, 1-2.) Giovanni is eight years old. Wesley is seven years old. Ravan is five years old.
31. Dr. F_____'s recommendations differed from the July 9, 2008, recommendations of the court-ordered psychologist, Dr. R____. Dr R____ had previously recommended that [m]aking the children available for adoption into permanent families is recommended at this time. It would be beneficial for the boys to be able to maintain a relationship with each other, even if not placed together in the same home.
(Exhibit 12, 36 [numbered page 34].) Also, Dr. R____ did not recommend reunification between any of the boys and either parent. (February 23, 2009, transcript, 105.)
The court finds that Dr. R____'s evaluation results and recommendations are more in keeping with the credible evidence and thus more credible than Dr. F___'s evaluation results and recommendations. 32. The court-ordered evaluation by Dr. R_____ occurred on June 10, 12 and 18, 2008, and her report is dated July 9, 2008. (Exhibit 12, 2.) The mother described her history. Id. , 5-11. She and the father met in 1998 and they were involved for approximately eight years. Id. , 6. The mother stated that about eighteen months into the relationship the father "started getting physically abusive to her. He was a big drinker and he also smoked marijuana. He became possessive and controlling and he tried to isolate her from her family . . ." Id. , 7. The mother also stated the following:
. . . [the father] became abusive when he drank alcohol. She argued back with him and they would yell at each other. He would hit her and she would defend herself. They both hit each other and he also used to bite her. She stated that she had to defend herself as he would take her down to the ground and she worried that he would kill her. [The mother] stated that she knows now that the children should have been taken away. She has learned a lot since that time however and she has changed . . . She wants to help them deal with their trauma. She stated that up until the time of the children's placement, she and [the father] never separated, though the police were involved because of fighting quite a few times, There was a restraining order one time involving her mother, because he had threatened her mother. The police did not do much when they came out because when they came out, [the mother] would say that everything was fine. She was afraid of [the father].
[The mother] stated that her only arrest was one domestic violence incident with [the father]. She went to domestic violence classes for nine or ten weeks and then the charge was dropped in court. [The mother] stated that she drinks socially, at occasional social events. She used to drink more often, but it has never been a problem for her. She had used some marijuana in the past but no other illegal drugs and she does not use any illegal drugs at this time. [The mother] stated that she used to smoke marijuana with [the father] a couple times a week. She started smoking when she was with him. Her last use of marijuana was the same week of the fight between her and him. [The mother] stated that she has never abused prescription drugs. She believed that [the father] had drug and alcohol problems and she used to ask him to get help for them, but he did not think he had a problem. [The mother] stated that [the father] tried to contact her early on after he went to jail. He wrote her some letters, but she never responded and gave them to her attorney. She stated that she will never let [the father] be in her life again.
Id.
The mother stated to the examiner that she had not been regularly attending individual therapy. Id., 7-8. She utilized her therapist when she had a disagreement with the DCF worker assigned to her case. Id., 7.
The mother recognized that visits with her brought up trauma memories for her children. Id., 8. As of June 2008, the mother knew that the years of "domestic violence affected her children a lot and they need therapy because of it. They always saw her with bruises, and saw her when she was bloody and sore . . ." Id., 10.
With respect to living arrangements if the children were returned to her, the mother stated the following to the examiner: . . . She is in a two-bedroom apartment, and the girls sleep on a futon in the living room when they come for the weekend. When the boys come home, they will share one bedroom. She stated that the girls prefer being on the futon so they can watch TV. [The mother] thought she might put [Giovanni] in one bedroom and have the other two boys in one room. Then she and her boyfriend would be on the futon and they would just move [Giovanni] out when the girls come for a weekend. She stated that she really is not sure exactly what they will work out for bedrooms. Id., 10. The mother's and her boyfriend's living circumstances thus are inadequate for the three boys to reside with them on a full-time basis.
The father discussed with such examiner the basis for some of his arrests and incarceration, including an incident where he was tasered by the police in front of the mother and the children: [The father] stated that the assault on the police officer charge occurred after he was tasered in an incident with his neighbor. He was prescribed some anti-anxiety medications for about a month after that, and this was prescribed by his primary physician. He was feeling very anxious when this happened. The children and their mother witnessed him being tasered. He had a hard time focusing on work or anything after that. He was afraid the police were following him and going to kill him. He has had no other periods of anxiety and he has not experienced those feelings since that time.
[The father] stated that he has never married and he is not involved with anyone at this time. He is hoping to get back with [the mother], but if not, he still has to work things out for his children. He is not planning to get out and go back with her right away, as she tried to kill him. She has not written to him at all. He stated that he had been trying to be in contact with her, but was unable to. He knows that she moved to Massachusetts and he wrote to her at her parents' house, but received no response. He has not tried to write to her since.
[The father] reported that he was involved with [the mother] for about ten years, after they met in Massachusetts at a Sheraton Hotel. She was a supervisor and he was a dishwasher. They started talking. He was 19 years old at the time that he met her . . . CT Page 7769
Id., 13. See also supra, pages 12-16.
The father acknowledged his role in some incidents of domestic violence, including "punch[ing] her in the face" and one incident where he "did pull [the mother] down by her hair and he burned her in the face with a cigarette." Id., 16.
As part of her examination, Dr. R_____ spoke with the trauma therapist for Wesley and Ravan. Such trauma therapist had been meeting with such boys including Giovanni since the summer of 2007. In January 2008, at her recommendation Giovanni started trauma therapy with another therapist. She reported, inter ala, the following: Other than discussing what happened in the incident prior to placement, the boys do not talk about either of their parents much. There was reportedly a visit with their mother in which she brought a boyfriend along. The foster mother reported that the boys interacted with him in the visit, and afterwards were talking about how much he looked like their father.
The boys [Wesley and Ravan] are very attached to their foster parents. It would likely be difficult for either of the boys to leave this foster home. Ms. H____ has worked with the foster mother through the therapy, and has also met with the foster father. The foster mother has participated in the trauma treatment, in order to provide the support and validation needed by the boys. Ms. H_____ had interviewed the mother initially to assess whether the mother could be in this role. She emphasized with the mother that it would be essential to be consistent in being there and providing the boys with support. However, the mother was not consistent in her appointments after that time and she continued to be focused on feeling mistreated by DCF by having to go through this. Because of this, Ms. H. did not find her to be appropriate to fill this role in the treatment.
Id., 21. Based on the experience of Ms. H______ with the mother, Giovanni's therapist relied on Giovanni's foster mother for the necessary role in the trauma cognitive behavioral therapy. Id., 22.
Since DCF filed the TPR petitions on May 23, 2008, and Dr. R___'s court-ordered evaluation sessions occurred thereafter on June 10, 12 and 18, 2008, the mother's continuing lack of cooperation with DCF and with the trauma therapist for Wesley and Ravan and her failure to acknowledge and accept her need for individual therapy for her continuing issues that inhibited such cooperation are evidence of her failure, as of May 23, 2008, to rehabilitate to the point where she could adequately parent such children given their needs. In In re Halle 72, 96 Conn.App. 815, 835, 902 A.2d 670 (2006), cert. denied, 280 Conn. 924 (2006), the Appellate Court explained the failure to rehabilitate requirements as follows:
"Failure to achieve a sufficient degree of personal rehabilitation is one of the seven statutory grounds on which parental rights may be terminated under § 17a-112(j)(3). We have stated that [p]ersonal rehabilitation as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent . . . [Section 17a-112] 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 . . .
Rehabilitate means to restore [a . . . delinquent person] to a useful and constructive place in society through social rehabilitation . . . The statute does not require [a parent] to prove precisely when she will be able to assume a responsible position in her child's life. Nor does it require her to prove that she will be able to assume full responsibility for her child, unaided by available support systems. It 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 . . ." (Emphasis in original.)
See also In re Melody L., supra, 290 Conn. at 149-50.
In Halle T., the Appellate Court explained the foregoing finding requirement concerning a parent's level of rehabilitation to assume a responsible position in the child's life as follows:
[T]he adjudicatory determination to be made by the trial court is whether the parent of a child who has been found by the [S]uperior [C]ourt to have been neglected [or] uncared for in a prior proceeding 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 . . . In conducting this inquiry, the trial court must analyze the respondent's rehabilitative status as it relates to the needs of the particular child . . .
Although the standard is not full rehabilitation, the parent must show more than any rehabilitation . . . Successful completion of the petitioner's expressly articulated expectations is not sufficient to defeat the petitioner's claim that the parent has not achieved sufficient rehabilitation . . . [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 . . . Thus, even if a parent has made successful strides in her ability to manage her life and may have achieved a level of stability within her limitations, such improvements, although commendable, are not dispositive on the issue of whether, within a reasonable period of time, she could assume a responsible position in the life of her children." (Citations omitted; emphasis added; internal quotation marks omitted.) In re Alejandro L., 91 Conn.App. 248, 259-60, 881 A.2d 450 (2005); see also In re Amneris P., 66 Conn.App. 377, 383-84, 784 A.2d 457 (2001); In re John G., 56 Conn.App. 12, 17-18, 740 A.2d 496 (1999).
In re Halle T., supra, 96 Conn.App. at 835-36. The same point is also set forth in In re Shyliesh H., 56 Conn.App. 167, 179-80, 743 A.2d 165 (1999), and in In re Danuael D., 51 Conn.App. 829, 840, 724 A.2d 546 (1999).
The "petitioner's expressly articulated expectations" are the specific steps. In Practice Book § 26-1(n), "specific steps" are defined as "those judicially determined steps the parent or guardian and the commissioner of children and families should take in order for the parent or guardian to retain or regain custody of a child or youth." While DCF has a statutory duty to attempt to reunify children with parents, see General Statutes § 17a-112(j), the specific steps pertain only to allegations of failure to reunify, see General Statutes § 17a-112(j)(3)(B).
In Halle T., the Appellate Court also referred to Supreme Court statements of the applicable standard: Our Supreme Court has instructed that the applicable standard in these types of cases "requires the court to find, by clear and convincing evidence, that the level of rehabilitation [a parent] 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." (Internal quotation marks omitted.) In re Eden F. , 250 Conn. 674, 706, 741 A.2d 873 (1999); see also In re Jeisean M. , 270 Conn. 382, 399, 852 A.2d 643 (2004); In re John C. , supra , 56 Conn.App. 17; In re Juvenile Appeal (84-3) , 1 Conn.App. 463, 477, 473 A.2d 795, cert. denied, 193 Conn. 802, 474 A.2d 1259 (1984). A finding of when the respondent would be able to resume caring for the child was required neither by statute nor by case law. Instead, the court properly examined whether, "within a reasonable time, considering the age and needs of the child, [the] parent could assume a responsible position in the life of the child . . ." (Internal quotation marks omitted.) In re John C. , supra , 17.
In re Halle T., supra, 96 Conn.App. at 837.
The Appellate Court then focused on the importance in each case of the factual context of the child's circumstances: We recently emphasized the importance of conducting this inquiry by considering the factual context of the particular child's situation. "The trial court must also determine whether the prospects for rehabilitation can be realized within a reasonable time given the age and needs of the child . . . What constitutes a reasonable time is a factual determination that must be made on a case-by-case basis." (Citation omitted; emphasis added; internal quotation marks omitted.) In re Alejandro L ., supra , 91 Conn.App. 260; see also In re Eden F. , supra , 250 Conn. 706; In re Christina V. , 38 Conn.App. 214, 220-21, 660 A.2d 863 (1995); see also In re Shyliesh H. , 56 Conn.App. 167, 173-74, 743 A.2d 165 (1999) (respondent's failure to achieve rehabilitation illustrated by lack of understanding of child's medical, psychiatric condition). In re Halle F., supra, 96 Conn.App. at 837-38. The mother's refusal to cooperate with DCF and with the children's therapists prior to the filing of the TPR petitions is evidence of her failure to rehabilitate pursuant to General Statutes § 17a-112(j)(3)(B) prior to DCF's filing of the TPR petitions. See also Practice Book § 35a-7A (fn 6, supra). The mother's antipathy toward DCF and her inability to work with DCF and such therapists were factors that hindered her from taking appropriate steps toward such rehabilitation through the May 23, 2008, DCF TPR petitions. The mother's denial of her need for services to address her debilitating issues arising from her long history as a domestic abuse victim (and occasional domestic violence perpetrator) began before the September 24, 2006, incident that resulted in the removal of the boys by DCF and the mother's voluntary transfer of primary physical custody of the girls to their biological father and paternal grandparents. In August 2006, DCF social worker M. H____ offered domestic violence services to the mother and substance abuse services to the father but each refused such services. (February 23, 2009, transcript, 125-26; exhibit 1, 3.) Despite or because of the severity of their respective issues, each parent unfortunately failed to see or appreciate the inevitability that their children would be removed from them for the sake of such children's health, welfare and safety.
Dr. R_____ reported that Giovanni was able to demonstrate good judgment for his age and that generally he appeared to be doing well in foster care. Id., 23. Dr. R. noted that Giovanni was: . . . still experiencing issues related to the traumas he has witnessed in his home, and he continues to feel quite angry with his father. It will be important for him to continue to work on these issues in therapy.
Id.
Dr. R_____ reported that Wesley had been "previously diagnosed with autism or pervasive developmental disorder." Id. She noted that he "needed to be closely watched, as he could be at risk for wandering off or acting inappropriately without close supervision." She also reported:
He continues to experience symptoms of trauma, including nightmares and fears. Overall, Wesley appears to have made progress in his behavior, but he is in need of continued treatment to help him deal with the traumas that still affect him and to help him in dealing with the issues related to his autism.
Id., 24.
Dr. R_____ observed in part that Ravan . . . had difficulty with changes to his routine. He could be expected to do better with structure and consistency. He has a need for the security of a predictable environment. This makes it particularly difficult for him when unexpected disappointments occur, such as his mother failing to show up for a visit as planned.
Id.
Dr. R_____ found through testing that the mother scored within the low average range of intellectual functioning. Id., 26. She also found that the mother's "problem-solving abilities are lower than those of most adults and she is limited in her ability to understand abstract concepts." Id. Additionally, Dr. R_____ determined that the mother tends to view herself as having stronger abilities for coping with problems than she really demonstrates. When things do not end up the way that she expects or wants, she is surprised and has little understanding of what went wrong. She blames other people or circumstances, as she fails to see how her own actions have played a part in the result. Id., 27.
With respect to her history of domestic violence, DR. R____ observed: [The mother] has been involved in significant levels of domestic violence. Although she does not believe that she would find herself in such a situation again, she has not developed a great deal of insight into the ways that her actions have contributed to the situation, nor has she learned to recognize the types of warning signs that would alert her to potential danger. She is at continued risk for further domestic violence without additional treatment in these areas.
Id.
Dr. R____ noted the psychological impediments to the mother's participation in services or work necessary for her to be able to reunify with her children: . . . However, she backs away from even minor stressors, as she does not know how to handle them and she does not want to risk failing. Unfortunately, this leaves her backing away from situations that she needs to be actively engaged in, such as the difficult and emotional process of working toward reunification with her children. Instead, she engages in magical thinking, telling herself that things will work out and the children will come back to her, even without her following through consistently with what needs to happen. She does not see this, however, as she believes that she has been quite reasonable and consistent in doing what was needed.
Id., 27-28.
Dr. R_____ also noted the mother's capacity for minimization of problems and issues: [The mother] denied problems with substance abuse, though she acknowledged using marijuana up until the time of the children's renewal. She reported that [the father's] use of alcohol and drugs led to his violent behavior in the home. Despite the ongoing problems, [the mother] remained in the home and denied or minimized the problems up until the children's removal.
Id., 28.
The father's intellectual functioning was also in the low average range. Id., 29. Dr. R______ concluded that the father was "an impulsive man who is easily angered." Id. She also concluded: Even minor provocations may cause him to act out aggressively. He blames others for provoking him, as he sees no other reasonable alternative than to engage in aggressive confrontations. He has only limited coping skills, and so he is quick to lose control. [The father] has engaged in violent interchanges both in intimate relationships, and with other individuals with whom he had no particular relationship. He sees violence as a normal way of resolving disagreements.
Id.
Dr. R_____ determined that the father did not take responsibility for his past behavior: . . . He has some understanding that his actions have contributed to his current problems, though he thinks that others' responses have been overreactions. He believes that he has been treated too harshly, as he does not see himself as being responsible for the degree of violence that he has engaged in, or the effects on his family. [The father] wants to be able to make things different when he gets out of prison, but he did not give any indication that he had any idea how to accomplish such changes.
Id., 29-30.
Dr. R______ determined that the quality of the father's thinking was poor, that he demonstrated poor judgment "and he makes choices which are in significant conflict with societal norms." Id., 30. She continued: Even when the results are quite negative, he continues to blame other people or circumstances. As a result, he fails to learn from his mistakes and instead tends to repeat the same mistakes again. He rejects others' suggestions for change.
Id., 30.
Despite the evidence to the contrary, the father denied that he has ever had any problems with either alcohol or drugs. Id. He also denied that substance abuse had been a problem for him. Id. Dr. R____ determined that the father was not motivated to make changes in his approach to life issues. Id. She noted: "He should be considered to be at high risk for further problems following his discharge from prison." Id.
Despite a warm and positive interaction between the mother and the children similar to the interaction observed by Dr. F____, Dr. R_____ concluded that [a]lthough the children have a relationship with their mother, they have not turned to her for their primary nurturance and security for some time. She is no longer in the role of psychological parent for the children.
Id., 32.
Dr. R_____ also determined that in June 2008, the father was not a psychological parent for the children. Id.
As confirmed by the mother's comments in other contexts that she was participating in various services primarily as a way to have her children returned to her instead of accepting that she had a need for such services, Dr. R____ observed that the mother had attended domestic violence group sessions to satisfy requirements in connection with her criminal charges instead of to help herself as a victim of domestic violence. Id. The mother was also attending individual therapy sessions but she did not want to attend such sessions more than once each month, since "she does not believe she needs to see a therapist as frequently as once monthly." Id. She blamed DCF for her delay of a year in finding a therapist in Massachusetts. Id.
In order to be closer to the mother and maternal step-grandfather who lived in the Springfield area of Massachusetts, the mother moved to such area instead of to the Connecticut side of the Connecticut-Massachusetts border. If the mother had remained in Connecticut, she would have been referred to and/or provided with services in Connecticut by DCF instead of having to find such services in Massachusetts. The mother's visitation with the children occurred in Enfield, CT (see report of Dr. F____, exhibit H, 12; February 23, 2009, transcript, 141-44.) DCF placed the boys in the Enfield area. (February 23, 2009, transcript, 146.) DCF also tried to refer the mother to Connecticut therapy services paid for by DCF. Id., 154. The mother had told the DCF worker that she suffered from depression. Id., 155. The worker also consulted with a DCF domestic violence specialist to identify services for the mother. Id., 155-57. However, through May 23, 2008, the mother was not committed to services other than sporadic visitation.
Although the father was participating in domestic violence and AA classes while he was incarcerated, he did not believe that he needed any such treatment. Id.
Dr. R____'s summary of each parent was that neither was really motivated to address and to engage in treatment for their serious problems that were impediments to their parenting: [The mother] is a somewhat cognitively limited woman with a significant history of involvement in domestic violence. She minimizes her part in the problems and she sees herself as being treated unfairly by DCF by their expectations for her. Although she reported that she is willing to participate in treatment, her participation over the past year and a half has been minimal. She is in need of further treatment, but she does not see herself as needing to make any significant changes. [The mother] has not been consistent in following through with what she needed to do in order to work toward a timely reunification with the children.
[The father] is an angry, impulsive man with a long history of assaults against others.
He blames other people for his aggressive behaviors. He has poor conflict resolution skills. Although there are other reports about drugs or alcohol contributing to his violence, [the father] does not believe that he has ever had a problem with substance abuse. He is not motivated for treatment and does not believe that he has a need for change.
Id., 33.
Dr. R_____ did not recommend that either parent be reunified with any of the children. Id., 34. She concluded that "[g]iven the lack of insight into their own psychological issues and needs, it is not reasonable to expect these parents to achieve sufficient personal rehabilitation within a reasonable period of time." Id., 35. Dr. R______ also concluded that [e]ven under the best of circumstances, it would be emotionally difficult for the children to go through a reunification with either of these parents, because of the trauma they experienced. With parents who do not have an adequate understanding of their own needs for treatment and positive change, reunification could have devastating effects on the children. There is no indication that either of these parents is likely to make adequate changes in the foreseeable future, and so it would be damaging to the boys' psychological health to have them wait longer without a permanent family.
Id., 35-36.
33. The court finds that the level of rehabilitation the mother has achieved falls short of that which would encourage a belief that at some reasonable future date she can assume a responsible position in her children's lives. The court also finds that the level of rehabilitation the father has achieved falls short of that which would encourage a belief that at some reasonable future date he can assume a responsible position in his children's lives. It is not in the best interest of any of the children to be reunified with either parent.
34. Additional facts are set forth infra. Unless otherwise specified, all facts set forth in this decision are found by clear and convincing evidence.
GENERAL STATUTES § 17A-112(k) FINDINGS:
1. The timeliness, nature and extent of services offered, provided and made
available to the parent and each child by an agency to facilitate the reunion of each child with the parent.
In addition to the services referred to above, each parent has been offered services including the following:
(A) The mother has been offered and/or has received individual services and services relating to her children from or facilitated by DCF for purposes of reunification. (Exhibit 6, 10-11.) Such services have included general reunification services, domestic violence victim services, family violence services, individual therapy, family therapy (not identified in the specific steps for the mother, see February 23, 2009, transcript, 160, but important for reunification), parenting classes and anger management classes.
Beginning in September 2006, through October 2008, the father was incarcerated. While he was incarcerated, the children were provided with services from or facilitated by DCF. Id., 11-13, 14-15. DCF recommended to the father that he seek services through the Department of Corrections. Id., 11. As of July 9, 2008, the father had not completed any services. Id. On the advice of the children's therapists, visitation was not offered when the father was incarcerated (or thereafter) because of the children's trauma issues and their fear of the father. Id., 15.
Additionally, the mother and the father were provided with administrative and case management services.
(B) In addition to the services described above, each of the children has been offered and has received the following services from or facilitated by DCF, inter alia:
medical and dental services plus an MDE;
reunification services; supervised visitation;
transportation;
therapeutic foster care services;
psychological services for trauma-related issues;
court-ordered psychological evaluation;
interactional evaluation by a psychologist selected by the mother; and
administrative and case management services.
All services offered and/or provided to the mother, the father and to each of the children have not been identified by any party as not reasonably timely under the circumstances.
2. Whether DCF has made reasonable efforts to reunite the family pursuant to
the federal Adoption Assistance and Child Welfare Act of 1980 as amended.
DCF has made efforts that were reasonable under the circumstances to reunite the mother with each of the children and the father with each of the children. See section 1 above and other discussions of reasonable efforts throughout this memorandum of decision. The reasonable efforts made and facilitated by DCF with respect to services for the mother and the father were timely and adequate to address the issues that led to DCF involvement with each of them and to address the issues that continued or arose after such DCF involvement. Unfortunately, the mother was unable to appreciate, understand and/or accept the existence of her personal and parenting problems, and to acknowledge her continuing need for services. Instead the mother repeatedly blamed DCF for the lack of her reunification with the children. See, e.g., exhibit 6, 12: . . . During many of the visits mother has expressed her frustration with the Department in front of the children . . . mother continues to voice her anger with the Department . . .
The mother also repeatedly misrepresented facts to DCF. Id., 13; exhibit 5, 4. For example, in 2008 the mother when questioned initially denied to DCF that she had a boyfriend (exhibit 5, 4) but thereafter on May 18, 2008, without notice to or prior approval from DCF the mother brought such boyfriend to a visit. Id. The mother refused DCF's request that he not visit and argued that her children needed to meet him. Id. The mother acted without consideration of the impact on her children and without giving DCF and the children's therapists the opportunity to determine if such meeting was appropriate and, if so, to prepare them for the introduction of such boyfriend into their visitation with the mother. Id. The negative impact on Wesley and Ravan of the mother's visitation was described by their therapist in letters dated February 14, 2008, and May 21, 2008. (Exhibit 10.) Each of such letters their therapist wrote that she had "serious concerns" that the visits between the mother and Wesley and Ravan "have served to destabilize them and exacerbate symptoms related to their diagnosis." Id. The continuing negative effects on Wesley and Ravan of the mother's visitation were also described by their foster mother in a May 27, 2008, letter. (Exhibit 13.)
The mother did not seem to understand, appreciate or care about how her confrontational and negative interactions with DCF including but not limited to her behavior at visits negatively impacted the children and her chances for reunification.
DCF social worker H_____ testified that beginning in December 2007, the mother's behavior began to deteriorate in front of the children. She was argumentative with DCF staff. She became upset when such staff attempted to re-direct her behavior. On one occasion she denied DCF protocol on transport of the children by pulling one of the children to her car. She used profanity. (February 23, 2009, transcript, 138.)
The father's lack of availability for services, incarceration and such father being unable or unwilling to acknowledge his use of and dependence on alcohol and his anger, parenting, domestic violence and other issues were an impediment to his treatment and to DCF's provision of reunification services. Because of the father's denial of need for services, provision of services would not have benefited the father. Pursuant to General Statutes 17a-112(j) the court finds that the father was unable or unwilling to benefit from reunification efforts, and that such efforts are not required.
General Statutes 17a-112(j) provides in part: The Superior Court, upon notice and hearing as provided in sections 45a-716 and 45a-717, 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 . . .
On September 27, 2006 and September 29, 2007, the court ordered specific steps for the mother and for the father "to safely . . . regain the custody . . ." of each such child. (See, e.g., exhibits 7 and 8.)
The mother did comply with some of the steps, including cooperation with a court-ordered evaluation that occurred in June 2008. However, in July 2007, the mother attended one family counseling session (family counseling was not directly identified in such steps but it was important to the chance of reunification) and then failed to return. Id., 17; see exhibit 5, 8; February 23, 2009, transcript, 144, 149-50. The mother also failed to attend domestic violence counseling and parenting classes when initially offered. (Exhibit 4, 10.) In April 2008, the mother again was referred for individual and family therapy but she did not follow through with such referral. Id., February 23, 2009, transcript, 144-45. The mother missed some visits (see, e.g., exhibit 4, 4) was late for other visits and did not behave appropriately by keeping her focus on her children at some of the visits she attended. (Exhibit 6, 17-18.) When the mother did comply such as with domestic violence victim services, it took her almost three months beyond the expected end of the eight-week program to complete the program (but the mother did eventually complete the program) (see Mother's Exhibits A and B).
As of May 2008, the father did not complete any of the parenting, substance abuse, domestic violence or family violence programs offered by the Department of Corrections. Id., 18. In June 2008, the father did complete some DOC programs. (Exhibits I-L.) Since the father was released from incarceration, he has completed two programs. (Exhibits A and B.) In December 2008, and in January and February 2009, the father had negative tests for alcohol, cocaine, THC and opiates. (Exhibits C and D.)
Thus, while the mother may have complied with some of the specific steps, she failed substantively to comply with important specific steps. Until June 2008, the father did not begin to comply with the specific steps. (Exhibits I-L.) Shortly after the father was released from incarceration, he began programs in the Bronx, New York. (Exhibits F-H.)
4. The feelings and emotional ties of such child with respect to his or her parents, any guardian of the person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties.The children fear their father. As of July 9, 2008, Dr. R____ concluded that "[a]lthough they remember him, there is little real relationship. The boys have been traumatized by the violence between the parents." (Exhibit 12, 35.) Such children have also been exposed to and negatively affected by the father's behavior toward others. See exhibits 17-19. For example, on June 13, 2006, the police were called to the family home. (Exhibit 19.) While the children were present in the home the father had an altercation with a neighbor. The boys were in the home. Id., 2. The mother was also present. Id. She was yelling at the father when the police arrived. Id. The police told the father he was going to be arrested. Id. The father resisted. Id. He was tasered in the home. Id.
On June 26, 2006, the police were called to the family home. (Exhibit 17.) The father was observed yelling at the maternal grandmother and the five children in a minivan. Id., 2. The police observed "that the children appeared to be upset." Id. The father had called the mother `a fucking whore just like your mother' in front of the five children." The father "started to bang on the glass table and the cabinets in the kitchen with his fists." Id. The maternal grandmother told the police that "the kids became very upset, were crying, and screamed for [the father] to stop yelling." Id. The mother did not want to provide a statement to the police. Id. The father was arrested.
On July 7, 2005, the police again were called to the family home. (Exhibit 18.) The father was in the home with the five children. Id., 2, 5. He had been yelling in English and Spanish at the neighbors from inside the home for approximately ninety minutes. Id. He threatened to kill the neighbors. Id., 1-2, 5. The father was arrested.
The children have a visitation relationship with the mother that has not been regular because the mother has missed scheduled visits, and at times the court has suspended the mother's visits. However, the mother has not been the day-to-day caretaker of any of the children since September 24, 2006, twenty months prior to the filing of the TPR petitions and twenty-nine months prior to the last day of the trial on February 25, 2009. As of the filing of the TPR petitions, the mother was no longer the psychological parent of the boys. (Exhibit 12, 35.) As of June 2008, and as of the end of the trial, the boys did have some positive thoughts about the mother, but she is associated with their common trauma.
Thus, none of the children currently has a primary parent-child relationship with either biological parent.
As of the dates of the trial, each such child was bonded to the foster parents. Such foster parents provide a positive, stable environment, and they currently provide for the needs of each child, work with them in the home, and bring them to the out-of-home services they require.
5. The age of each of the children:
Giovanni is eight years old.
Wesley is seven years old.
Ravan is five years old.
6. The efforts each parent has made to adjust his or her circumstances, conduct or conditions to make it in the best interests of the children to return home in the foreseeable future including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions, and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child:In October 2008, five months after DCF filed the May 23, 2008, TPR petitions, the father was released from incarceration and he moved to the Bronx, New York. As of May 23, 2008, the father had not completed any of the parenting, substance abuse, domestic violence or family violence programs offered by the Department of Corrections. (Exhibit 6, 18.) In June 2008, the father did complete some DOC programs. (Exhibits I-L.) Since the father was released from incarceration, he has completed two programs. (Exhibits A and B.) In December 2008, and in January and February 2009, the father had negative tests for alcohol, cocaine, THC and opiates. (Exhibits C and D.) However, the father has not accepted his need for services and these efforts by the father are insufficient to make it in the best interests of the children to return to his home in the foreseeable future.
In July 2007, the mother attended one family counseling session and then failed to return. (Exhibit 6, 17; see exhibit 5, 8.) The mother also failed to attend domestic violence counseling and parenting classes when initially offered. (Exhibit 4, 10.) In April 2008, the mother was referred for individual and family therapy but she did not follow through with such referral. Id. The mother missed some visits (see, e. g., exhibit 4, 4) was late for other visits and did not behave appropriately by keeping her focus on her children at some of the visits she attended. (Exhibit 6, 17-18.) When the mother did comply such as with domestic violence victim services, it took her almost three months beyond the expected end of the eight-week program to complete the program (see Mother's Exhibits A and B). However, prior to May 23, 2008, the mother did not accept her need for services (she attended or participated in them, generally sporadically, "for the sake of her children" or "so she could get her children back") and thus she did not meaningfully benefit from such services. Her efforts were insufficient to make it in the best interests of the children to return to her home in the foreseeable future.
7. The extent to which a parent has been prevented from maintaining a meaningful relationship with the children by the unreasonable act or conduct of the other parent of the children, or the unreasonable act of any other person or by the economic circumstances of the parent.There was no evidence presented that either the mother or the father has been prevented from maintaining a relationship with any of the children by any unreasonable act or conduct of any other person. Neither parent has paid support for either of the children or regularly provided clothes or other items to either of the children since their September 2006, removal.
LAW APPLICABLE TO TERMINATION OF PARENTAL RIGHTS CASES:
General Statutes § 17a-93 (and General Statutes § 45a-707(8)) provide: "Termination of parental rights" means the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his parent or parents so that the child is free for adoption except it shall not affect the right of inheritance of such child or the religious affiliation of such child . . .
1. Prerequisites to a TPR determination, and the statutory grounds alleged by the petitioner DCF:
General Statutes § 17a-112(j)(3) provides that three prerequisites to a determination that any TPR petition should be granted are that the court must find by clear and convincing evidence (1) that [DCF] 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 . . .
In this case, prior to May 23, 2008, and prior to the end of the trial, both the father and the mother were unable or unwilling to benefit from offered reunification efforts. The second requirement is that the court must find by clear and convincing evidence that
. . . (2) termination is in the best interest of the child . . .
This court finds by clear and convincing evidence that termination of the parental rights of the mother and the father is in the best interest of each child.
The third requirement is that the court find, by clear and convincing evidence, that DCF has proved at least one of seven statutory grounds for termination. In re Melody L., 290 Conn. 131, 163 (2009); In re Davonta V., 98 Conn.App. 42, 43 (2006), affirmed, 285 Conn. 483 (2008); In re Shaun B., 97 Conn.App. 203, 214, 903 A.2d 246 (2006); In re Brea B., 75 Conn.App. 466, 473, 816 A.2d 707 (2003).
The ground alleged against each parent in this case is: . . . (B) the child (i) has been found by the Superior Court or the Probate Court to be neglected or uncared for in a prior proceeding . . . [and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129] and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child.
(The official form does not include the bracketed language in the Ground (B)(i) allegations. See In re Nicholas G., Docket No. D03-CP07-002405-A, Superior Court for Juvenile Matters, Child Protection Session at Middletown (Bear, J., April 28, 2009).
This court finds by clear and convincing evidence that each child (i) has been found by the Superior Court for Juvenile Matters to be neglected in a prior proceeding; the parent of each such child has been provided specific steps to take to facilitate the return of each such child to the parent pursuant to General Statutes § 46b-129; and each parent 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 each such child, such parent could assume a responsible position in the life of the child.
A neglect case is initiated by a petition. General Statutes § 46b-129(a). A termination of parental rights case is initiated by a separate petition. General Statutes § 17a-112(a).
Despite the order in General Statutes § 17a-112(j) in which the statutory prerequisites to be proved are set forth, prior to any termination of parental rights [i]f the trial court determines that a statutory ground for termination exists, then it proceeds to the dispositional phase. During the dispositional phase, the trial court must determine whether termination is in the best interests of the child. In re Eden F., 250 Conn. 674, 689, 741 A.2d 873 (1999).
2. Explanation of Ground B, failure to rehabilitate: A. General standards:
See pages 28-32, supra.
The Appellate Court has noted that in a number of cases despite a parent's progress toward personal rehabilitation the parent had not rehabilitated sufficiently to have the child returned and to avoid a termination of parental rights: The court acknowledged the evidence that the respondent had made some progress in personal rehabilitation. Nevertheless, when viewed in the light of the child's significant needs, such progress, made over approximately two years, was insufficient when considered in relation to the child's special needs and her need for permanency. Our case law contains numerous examples of a parent, who, despite an admirable attempt, was unable to achieve rehabilitation sufficiently and, as a result, lost his or her parental rights. See, e.g., In re Vanna A. , supra , 83 Conn.App. 22-25; In re Sheila J. , supra , 62 Conn.App. 479-82 (respondent's efforts at rehabilitation too little, too late and court's finding that she failed to achieve sufficient rehabilitation despite some level of stability not clearly erroneous); In re Shyliesh H. , supra , 56 Conn.App. 172-75 (although respondent testified that he loved child, trial court's finding that he lacked insight, responsibility to cope with her significant psychiatric disorder supported determination of failure to achieve rehabilitation).
In re Halle T., supra, 96 Conn.App. at 838-39 (footnote omitted). In addition to Sheila J., 62 Conn.App. 470, 481, 771 A.2d 244 (2001) (" . . . In effect, however, the court determined that although the respondent demonstrated some efforts and had taken some steps toward rehabilitation, those efforts were too little and too late . . ."), the Appellate Court has upheld other trial court findings of rehabilitation efforts being "too little, too late . . ." see In re Brittany J., 100 Conn.App. 329, 335, 917 A.2d 1024 (2007) (" . . . The court also found the testimony of James Connolly, a court-appointed psychologist, to be more credible on this issue and noted that the respondent's `recent cooperation with her psychotropic medication regimen on the eve of trial is `too little, too late' . . .' ") and In re Dorrell R., 64 Conn.App. 455, 780 A.2d 944 (2001). The same can be said for the mother, who in December 2008, several months after the filing of the TPR petitions and shortly before the trial, finally began to participate in individual therapy relating to her domestic violence victim issues.
Although the court can consider rehabilitation efforts occurring after the filing of the TPR petition, it does not have to do so, and the court can determine that from the perspective of the age, needs and circumstances of the child and the usual application of Practice Book § 35a-7A that those efforts are not timely:
The court found by clear and convincing evidence that the respondent is unable or unwilling to make realistic and sustained efforts to conform her individual conduct to acceptable parental standards. The department made numerous referrals for the respondent during the pendency of this case. The respondent failed to take advantage of the referrals in a timely mariner, and it was not until the filing of the termination petitions that she demonstrated any willingness to address her problems. The respondent has not made the changes necessary in her lifestyle in a timely manner that would indicate that she would be a safe, responsible and nurturing parent for the children.
In re Anthony H., 104 Conn.App. 744, 758 (2007), cert. denied, CT Page 7789 285 Conn. 920, 943 A.2d 1100 (2008).
Also, the presence of a "strong loving bond" or a "strong bond" between a parent and a child in and of itself may not be sufficient to prevent termination of parental rights. In the Anthony H. decision, the Appellate Court considered substantive issues that kept the mother from "being a responsible parent to the children" despite a claim of a "strong loving bond": The respondent also argues that the court's finding that she had failed to achieve rehabilitation is clearly erroneous because she has a strong loving bond with her children. The respondent relies on dicta in In re Jessica M. , 49 Conn.App. 229, 714 A.2d 64 (1998), appeal dismissed, 250 Conn. 747, 738 A.2d 1087 (1999), to support her position. "[T]o the extent the parents can demonstrate to [the child] that they care about her and love her, they have a responsible position in her life." Id. , 240. The respondent claims that she has a responsible position in the lives of the children by virtue of her strong loving bond with them. The respondent's argument founders because she has multiple issues that prevent her from being a responsible parent to the children, such as failing to provide appropriate and reliable housing, failing to maintain employment and failing to keep them safe from R, who is abusive and has substance abuse problems, among other concerns.
In re Anthony H., supra, 104 Conn.App. at 762-63 (footnotes omitted). See also In re Anna Lee M., supra, 104 Conn.App. at 124, 143-44; In re Brittany J., supra, 100 Conn.App. at 333, 336-37; In re Tyqwane V., 85 Conn.App. 528, 533, 535-36 (2004). In a recent case, former Justice Peters observed:
The sad fact is that there is a difference between parental love and parental competence.
In re Christina M., 90 Conn.App. 565, 575, 877 A.2d 941, affirmed, 280 Conn. 474, 908 A.2d 1073 (2006).
The Appellate Court has stated that evaluating whether there has been sufficient parental rehabilitation the trial court must consider the full history of the respondent's parenting abilities: . . . The court, however, makes an inquiry into the full history of the respondent's parenting abilities. In re Galen F. , 54 Conn.App. 590, 594, 737 A.2d 499 (1999) . . .
In re Jennifer W., 75 Conn.App. 485, 499, 816 A.2d 697 (2003), cert. denied, 263 Conn. 917, 821 A.2d 770 (2003); see also In re Victoria B., 79 Conn.App. 245, 254, 829 A.2d 855 (2003).
In an earlier decision, In re Tabitha P., 39 Conn.App. 353, 361, 664 A.2d 1168 (1995), the Appellate Court expressed this requirement as follows: . . . Thus, the trial court's inquiry requires the determination of both the present and past status of the child, and obtaining a historical perspective of the respondent's child caring and parenting abilities . . .
See also In re Emerald C., 108 Conn.App. 839, 858-59 (2008), where the trial court considered the father's abandonment of older children in determining whether he would parent Emerald. As set forth above, since September 24, 2006, through her voluntary transfer of custody the mother in this case has not had primary physical custody of her older daughters although DCF was not involved in their removal from the mother or placement with the father and the paternal grandparents.
In a very recent decision, the Appellate Court has expressed the trial court's duty to consider the "entire picture" of the parent-child relationship: In order for the court to make a determination as to the respondent's prospects for rehabilitation, the court was required to obtain "a historical perspective of the respondent's child caring and parenting abilities." In re Tabitha P. , 39 Conn.App. 353, 361, 664 A.2d 1168 (1995). "Because the parent-child relationship is at issue, all relevant facts and family history should be considered by the trial court when deciding whether to terminate the respondent's parental rights . . . The parent-child relationship presents an ongoing dynamic that cannot be frozen in time. The entire picture of that relationship must be considered whenever the termination of parental rights is under consideration by a judicial authority." In re Brianna F. , 50 Conn.App. 805, 814, 719 A.2d 478 (1998). Finally, "[t]o preclude consideration of the facts existing at the time of [a prior termination of parental rights proceeding] would not allow for a comprehensive analysis of the parent-child relationship." Id. , 818.
In re Anna Lee M., 104 Conn.App. 121, 123 (2007), cert. denied, 284 Conn. 939 (2007). In this case, the entire picture of the parent-child relationship includes years of the children's exposure to domestic violence including physical abuse, threats, hateful behavior between the parents, denigration by each parent of the other, substance and alcohol abuse and trauma therapy for each of the children. The foster mother for Wesley and Ravan described the children's behavior after visits with the mother including head-banging, rocking during the night, anxiety and acting out in school and on the school bus. (February 24, 2009, transcript, 62.) The children have said to the foster mother "mommy stabbed daddy or . . . the blood was on the floor." Id. They mentioned the mother being burned. Id., 63. When they were first placed with the foster parents in the therapeutic foster home, they decompensated at the sound of a siren. Id., 62. Although approximately twenty months had passed since the children had been removed from the parents, the May 2008, visit (where the mother without warning to DCF or permission from DCF, and without the children being prepared for it) brought her then new boyfriend to such visit, was overwhelming for such children and negatively impacted them. See exhibit 13.
This court, moreover, cannot speculate about a parent's chances for future rehabilitation by assuming, for example, that a parent successfully would successfully complete individual or the necessary long-term family therapy, see, e.g., February 25, 2009, transcript, 26, or a parenting program, or obtain independent housing in the future adequate for all of the children, or earn a legal income sufficient to support himself or herself and the children. In In re Selena O., 104 Conn.App. 635, 642-43 (2007), the trial court found that the mother could be rehabilitated within a reasonable period of time in the future based on predictions of what might occur many months in the future. The Appellate Court determined that the trial court's findings were based on facts that were not in evidence, and on a fact that did not exist. Id., 648-49. The trial court's findings were speculative, material to its decision and clearly erroneous. Id.
B. Ground B exception to the usual rule that in the adjudicatory phase, the
CT Page 7792
judicial authority is limited to evidence of events occurring prior to the filing of the TPR petition, as amended, to be applied in the discretion of the trial court: Connecticut Practice Book § 35a-7A, effective January 1, 2009, provides that (a) In the adjudicatory phase, the judicial authority is limited to evidence of events preceding the filing of the petition or the latest amendment, except where the judicial authority must consider subsequent events as part of its determination as to the existence of a ground for termination of parental rights.(b) In the discretion of the judicial authority, evidence on adjudication and disposition may be heard in a non-bifurcated hearing, provided disposition may not be considered until the adjudicatory phase has concluded.
In In re Latifa K., 67 Conn.App. 742, 748-49, 789 A.2d 1024 (2002), the Appellate Court explained the language of Conn. Practice Book § 33-3(a), the predecessor of § 35a-7 and § 35a-7A, as follows: . . . A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition." (Internal quotation marks omitted.) In re Roshawn R. , 51 Conn.App. 44, 52, 720 A.2d 1112 (1998). "In the adjudicatory phase of termination proceedings, the court determines the validity of the grounds alleged in the petition, and therefore is limited to events preceding the filing date of the petition. In the disposition phase, the court is concerned with what action should be taken in the best interests of the child, and in that phase the court is entitled to consider facts occurring until the end of the trial." In re Romance M. , 30 Conn.App. 839, 859, 622 A.2d 1047 (1993), appeal dismissed, 229 Conn. 345, 641 A.2d 378 (1994).
Despite Practice Book § 33-3(a) and case law regarding termination proceedings generally, we have determined that with regard to termination petitions brought under § 17a-112(c)(3)(B) [now § 17a-112(j)(3)(B)], the trial court may, in the adjudicatory phase, properly consider facts and events that occur after the filing date of the petition in determining whether a respondent has achieved a sufficient degree of personal rehabilitation within the meaning of that statute. See In re Stanley D. , 61 Conn.App. 224, 230, 763 A.2d 83 (2000). In In re Stanley D. , we addressed a claim that the trial court improperly found that the respondent had not achieved sufficient personal rehabilitation within the meaning of § 17a-112(c)(3)(B). Id. , 225, 763 A.2d 83. In our explanation of the requirements of § 17a-112(c)(3)(B) and the hearing process for petitions to terminate parental rights based on that section, we stated that "`[p]ersonal rehabilitation' refers to the reasonable foreseeability of the restoration of a parent to his or her former constructive and useful role as a parent, not merely the ability to manage his or her own life . . . In the adjudicatory phase, the court may rely on events occurring after the date of the filing of the petition to terminate parental rights when considering the issue of whether the degree of rehabilitation is sufficient to foresee that the parent may resume a useful role in the child's life within a reasonable time." (Citation omitted; emphasis in original.) Id. , 230. The respondent, therefore, cannot prevail on his claim that the court could not consider whether he had achieved personal rehabilitation during the eighteen months subsequent to the filing of the petitions.
See also In re Anthony A., 112 Conn.App. 643, 649 (2009); In re Cheila R., 112 Conn.App. 582 (2009); In re Joseph L., 105 Conn.App. 515, 527-28 (2008); and In re Anthony H., supra, 104 Conn.App. at 757-58.
As set forth above, in Ground (B) cases, a court may consider events subsequent to the filing date of the petitions, but it does not have to do so: . . . This court has expanded that rule [set forth in § 35a-7A] to allow courts to consider events subsequent to the filing date of the petitions in the adjudicatory phase of termination proceedings. "Practice Book § 33-3(a) [now § 35a-7A] limits the time period reviewable by the court in the adjudicatory phase to the events preceding the filing of the petition or the latest amendment . . . In the adjudicatory phase, the court may rely on events occurring after the date of the filing of the petition to terminate parental rights when considering the issue of whether the degree of rehabilitation is sufficient to foresee that the parent may resume a useful role in the child's life within a reasonable time." (Citations omitted; emphasis added; internal quotation marks omitted.) In re Stanley D. , supra , 61 Conn.App. at 230; see In re Amber B. , 56 Conn.App. 776, 785, 746 A.2d 222 (2000). The respondent's appeal challenges the evidence that a court must consider during the adjudicatory phase of the proceedings. The respondent argues that because this court has stated that trial courts may, in their discretion, consider such evidence, fundamental fairness requires the trial court to consider those events that take place up until the hearing. We do not agree with the respondent.
In re Jennifer W., supra, 75 Conn.App. at 494-95; see also In re Selena O., 104 Conn.App. 635, 646 (2007), and In re Nelmarie O., 97 Conn.App. 624, 628, 905 A.2d 706 (2006).
C. The relationship between a respondent's compliance with the "specific steps" and whether there is "sufficient rehabilitation":
General Statutes § 46b-129, pertaining to neglect and orders of temporary custody, contains three references to "specific steps." The first reference is in subsection (b): . . . Upon issuance of an ex parte order, the court shall provide to the commissioner and the parent or guardian specific steps necessary for each to take to address the ex parte order for the parent or guardian to retain or regain custody of the child or youth . . . CT Page 7795
The second reference is in subsection (d):
. . . The court, after a hearing pursuant to this subsection [relating to the preliminary hearing on the order of temporary custody or order to appear or the first hearing on a petition filed pursuant to § 46b-129(a) pertaining to neglect, uncared-for or dependency petitions], shall order specific steps the commissioner and the parent or guardian shall take for the parent or guardian to regain or to retain custody of the child or youth . . .
The third reference is in subsection (j) which provides that if a child is committed to DCF after being adjudicated neglected or uncared for "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."
Practice Book §§ 33a-6 and 33a-7 also contain similar references to the issuance of specific steps by the court at the time of the issuance of an ex parte order of temporary custody and at the preliminary hearing. Practice Book § 33a-6(d) provides: . . . (d) Upon issuance of an ex parte order or order to appear, the judicial authority shall provide to the commissioner of the department of children and families and the respondents specific steps necessary for each to take for the respondents to retain or regain custody of the child or youth . . .
Practice Book § 33a-7 provides:
(a) At the preliminary hearing on the order of temporary custody or order to appear, or at the first hearing on a petition for neglect, uncared for, dependency, or termination of parental rights, the judicial authority shall: . . . (8) make any interim orders, including visitation, that the judicial authority determines are in the best interests of the child or youth, and order specific steps the commissioner and the respondents shall take for the respondents to regain or to retain custody of the child or youth . . .
General Statutes § 17a-112(j)(3)(B), pertaining to termination of parental rights, provides in part with respect to specific steps: The Superior Court, upon notice and hearing as provided in sections 45a-716 and 45a-717, 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 . . . (Emphasis supplied.)
The official form for the petition for termination of parental rights utilized by DCF (JD-JM-40 Rev. 9-2006) separately sets forth Ground B(i) and Ground(B)(ii) bases for termination, so that DCF can select one, the other or both as a basis for termination. The official form does not include the italicized language in the Ground (B)(i) allegations. See In re Nicholas G., Docket No. D03-CP07-002405-A, Superior Court for Juvenile Matters, Child Protection Session at Middletown (Bear, J., April 28, 2009), and page 48, supra.
The Supreme Court has emphasized the importance of compliance by each respondent with the specific steps: . . . Although the present appeal does not concern a termination proceeding, we note that specific steps are considered to be "fair warning" to a parent of the potential termination of parental rights in subsequent proceedings. In re Jeffrey C. , 64 Conn.App. 55, 62, 779 A.2d 765 (2001), rev'd on other grounds, 261 Conn. 189, 802 A.2d 772 (2002). CT Page 7797
Indeed, the failure to comply with specific steps ordered by the court typically weighs heavily in a termination proceeding . . .
In re Devon B., 264 Conn. 572, 584 (2003). Such fair warning concept has also been expressed as follows: General Statutes § 46b-129(j) . . . also contains an "explicit statutory requirement that a parent be given `specific steps' to accomplish to facilitate the return of the child"; In re Shyliesh H. , 56 Conn.App. 167, 179, 743 A.2d 165 (1999); to the custody of the parent. "Personal rehabilitation, therefore, is to be determined, in part, by compliance with those specific steps, which give the parent fair warning of what is required"; id. ; to be reunited with the child.
In re Justice V., 111 Conn.App. 500, 507, 959 A.2d 1063 (2008).
However, the Appellate Court has explained that successful completion of the specific steps, e.g., "petitioner's expressly articulated expectations," is, by itself, "not sufficient to defeat the petitioner's claim that the parent has not achieved sufficient rehabilitation. In re Vincent D., supra, 65 Conn.App. at 670, 783 A.2d 534." In re Jennifer W., supra, 75 Conn.App. at 500. In Vincent D., the Appellate Court explained: In determining whether a parent has achieved sufficient personal rehabilitation, a court may consider whether the parent has corrected the factors that led to the initial commitment, regardless of whether those factors were included in specific expectations ordered by the court or imposed by the department . . . Accordingly, successful completion of expressly articulated expectations is not sufficient to defeat a department claim that the parent has not achieved sufficient rehabilitation . . .
In re Vincent D., 65 Conn.App. 658, 670, 783 A.2d 534 (2001) (citations omitted). See also In re Melody L., supra, 290 Conn. at 150-51.
In a recent decision in In re Cheila R., 112 Conn.App. 582, 591 (2009), the Appellate Court rejected claims by a mother that the requirements of the specific steps "placed unreasonable demands on her," overwhelmed her, caused her to make poor decisions and made it seem that she had abdicated her parental responsibility. The Appellate Court conflated the terms of the specific steps with the responsibilities of being a parent: . . . We disagree that there was insufficient evidence to support the court's findings by clear and convincing evidence that the respondent failed to achieve sufficient rehabilitation and that it is in the best interest of the child to terminate the respondent's parental rights. The respondent's claim demonstrates a lack of understanding of what it takes to be a parent. To be a protective, nurturing parent, one must be able meet the needs of one's child, which are paramount, regardless of the needs of the parent. See General Statutes § 117a-112(j)(3)(B)(i); In re Alejandro L. , 91 Conn.App. 248, 259-60, 881 A.2d 450 (2005) (critical issue is not whether parent has improved ability to manage own life but whether parent has gained ability to care for needs of child). The record demonstrates that the respondent, seventeen at the time she gave birth, has not come to terms with her need for mental health treatment and education, in addition to gaining employment, housing and parenting skills that any parent must possess to protect and nurture a child.
Id., 591-92.
D. Reasonable efforts by DCF to facilitate reunification:
With respect to reasonable efforts, in the context of General Statutes § 117a-112(j)(3) such phrase means doing everything reasonable, and DCF is not required to provide every service that is possible. In re Melody L., 290 Conn. 131, 147, 962 A.2d 81 (2009). Given the mother's lack of trust of and cooperation with DCF and the father's unavailability, DCF's reunification efforts including offers of services were reasonable, and with respect to the mother, substantial.
Reunification efforts generally consist of useful and relevant services for each parent and for each of the children. Such services that are offered are based on the needs and issues that have led to the removal of the children and/or the filing of neglect petitions. In this case the primary parental issues were substance/alcohol abuse, mental health issues, cognitive limitation, inadequate parenting, domestic violence and serious physical abuse. The children suffered from emotional abuse and serious trauma. Usual rehabilitative services may include individual, group and family therapy and/or counseling, parenting classes, supervised visitation including a parenting component, anger management classes, substance and alcohol abuse evaluation and treatment, domestic violence victim services, housing assistance, intensive in-home services, home aides, education, court-ordered evaluations, necessary medical care including psychiatric services, and administrative and case management services.
In In the Interest of Cameron W., 2006 Ct.Sup. 2805, 2833, No. M08-CP05-009919-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Wilson, J., March 13, 2007), Judge Wilson recently has summarized Appellate Court decisions where DCF efforts have been found to be reasonable: In finding that DCF made reasonable efforts, the courts have given careful consideration of the circumstances of each individual case. See, e.g. In re Destiny D. , 86 Conn.App. 77, 83-84, 859 A.2d 793, cert, denied, 272 Conn. 911 (2004) (department provided regular visitation, rehabilitative services, counseling and therapy for children[;] respondent's performance in rehabilitative programs was disappointing, including erratic attendance, resistance to treatment recommendations, and positive drug tests; respondent also failed to sign releases for a period of time, so department unable to make additional referrals); In re Jonathan C. , 86 Conn.App. 169, 180, 860 A.2d 305 (2004) (department provided numerous referrals for services, facilitated visitation, and provided therapy for both respondent and children); In re Sheila J. , 62 Conn.App. 470, 479, 771 A.2d 244 (2001) (department offered respondent services over several years, including substance abuse evaluation and treatment, parenting skills classes, domestic violence counseling, a family reunification program, a psychological evaluation, and visitation; but she failed to avail herself of or participate meaningfully in those services by failing to attend many visits, and denying the fact that she needed to participate in counseling); In re Daniel C. , supra , 63 Conn.App. 362-63 (respondents participated in services but continually relapsed and resumed abusing substances and alcohol, so department declined to pursue goal of reunification after children were removed . . ." ["On the basis of our conclusion that the department engaged in reasonable efforts to reunify this family, it was proper for the department to decline to pursue reunification after the children were removed . . ."]); In re Ebony K. , supra , 68 Conn.App. 350 (respondent's inability to overcome drug addiction and failure to comply with services "thwarted the department's efforts to reunify her and the child.")
If a parent is resistant to, uninterested in, uncooperative with services, or residing out of state, then the efforts that DCF will be able to make inevitably will be less in scope than those made for a parent who is compliant, interested, cooperative and residing in Connecticut. Though different in amount and scope, each set of efforts can be reasonable under the circumstances. And if a parent does not believe that he or she needs any services, then DCF's decision to make no efforts may be reasonable. See In re Vincent B., 73 Conn.App. 637, 644, 809 A.2d 1119 (2002), cert, denied, 262 Conn. 934, 815 A.2d 136 (2003). See also In re Antony B., 54 Conn.App. 463, 476, 735 A.2d 893 (1999): The department is required only to make "reasonable efforts." It is axiomatic that the law does not require a useless and futile act. See Connecticut Light Power Co. v. Costello , 161 Conn. 430, 441, 288 A.2d 415 (1971).
Although DCF is required to do "everything reasonable" in its reunification efforts, DCF need not be perfect in its efforts to provide reunification services for a court to find that it has made reasonable efforts. See In re Melody L., supra, 290 Conn. at 147: We conclude that the trial court's finding that the department made reasonable efforts at reunification was not clearly erroneous. Even if the evidence had established that additional family therapy might have been beneficial, such evidence does not render the trial court's finding clearly erroneous. As we previously have noted herein, "[r]easonable efforts means doing everything reasonable, not everything possible." (Internal quotation marks omitted.) In re Destiny D. , 86 Conn.App. 77, 82, 859 A.2d 973, cert. denied, 272 Conn. 911, 863 A.2d 702 (2004). The Appellate Court properly has affirmed findings that the department made reasonable efforts for reunification in cases in which the department's efforts were far less comprehensive than those in the present case. See In re Alexander T. , 81 Conn.App. 668, 673, 841 A.2d 274 ("[i]n light of the entire record, the failure to provide the referral, while a lapse, does not make the overall efforts of the department fall below the level of what is reasonable"), cert. denied, 268 Conn. 924, 848 A.2d 472 (2004); In re Ebony H., 68 Conn.App. 342, 350, 789 A.2d 1158 (2002) ("[n]otwithstanding the court's finding that the department's response to the [respondent mother's] request for assistance in obtaining housing was shameful and unacceptable, our review of the evidence admitted at the trial does not leave us with a definite and firm conviction that the court mistakenly found that the department had made reasonable efforts to reunify the respondent and the child").
3. The best interest of the child requirements:
As set forth above, the court first determines whether DCF has proved, by clear and convincing evidence, one of the grounds alleged in its TPR petitions. In this case, the ground alleged against both the mother and the father is Ground B, failure to rehabilitate. The court looks separately at the proof as to Ground B against the mother and the father. The court also considers whether each parent has rehabilitated sufficiently adequately to parent any or all of the children.
If the court finds that DCF has proved Ground B concerning one or more of the children, before the court can terminate parental rights, it must find, by clear and convincing evidence, that to do so is in the best interest of such child: After determining whether one of the statutory grounds for termination of parental rights under General Statutes § 17a-112(j) exists by clear and convincing evidence, a judge is required to evaluate whether severing the legal tie between parent and child is in the child's best interest. That task is among the most sensitive and difficult with which a judge is charged. Although a judge is guided by legal principles, the ultimate decision to terminate parental rights is intensely human. It is the judge in the courtroom who looks the witnesses in the eye, interprets their body language, listens to the inflections in their voices and otherwise assesses the subtleties that are not conveyed in the cold transcript.
In re Davonta V., supra, 98 Conn.App. at 42, 43.
As has been set forth above: A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition . . . In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights [under § 17a-112(j)] exists by clear and convincing evidence. 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 interests of the child.
In re Brea B., 75 Conn.App. 466, 469-70, 816 A.2d 707 (2003) (internal quotation marks omitted). See also In re Melody L., supra, 290 Conn. at 163; In re Selena O., supra, 104 Conn.App. at 643 n. 8; In re Shaun B., supra, 97 Conn.App. at 206-07.
The difference in focus between adjudication and disposition has been explained as follows: In the dispositional phase of a termination of parental rights hearing, "the emphasis appropriately shifts from the conduct of the parent to the best interest of the child." In re Romance M. , 229 Conn. 345, 356-57, 641 A.2d 378 (1994). During this dispositional phase, "the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent's parental rights is not in the best interest of the child. In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in § 17a-112[k]." In re Tabitha P. , 39 Conn.App. 353, 361-62, 664 A.2d 1168 (1995). We note that those "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." (Citation omitted.) In re Victoria B. , 79 Conn.App. 245, 261, 829 A.2d 855 (2003).
In re Davonta V., supra, 98 Conn.App. at 46-47 (footnote omitted). See also In re Janazia, 112 Conn.App. 69, 98 (2009).
The seven required statutory findings are not specified in General Statutes § 17a-112(k) as the only parameters for determining the best interest of the child in a TPR context. Instead, the focus of many of such required statutory findings is to insure that the parents' rights and interests appropriately and properly have been considered.
The seven required findings set forth in General Statutes § 17a-112(k) are 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.
The Appellate Court recently has set forth the best interest standards of the child in a TPR context as including ". . . the child's interests in sustained growth, development, well-being, and continuity and stability of its environment . . ." In re Ryan P., 102 Conn.App. 608, 625-26, 926 A.2d 690 (2007); see also In re Janazia, supra, 112 Conn.App. at 97; In re Cameron C., 103 Conn.App. 746, 759, 930 A.2d 826 (2007), cert. denied, 285 Conn. 906 (2008), and In re Brianna C., supra, 98 Conn.App. at 804. Continuity and stability of environment are elements of permanency. The Appellate Court stated that in making such best interests determination, the trial court should "consider and make" the required written General Statutes § 17a-112(k) findings: The respondent and R both claim that the court improperly concluded, in the dispositional phase of the hearing, that it was in the child's best interest to terminate the parental rights of the respondent with respect to R. We disagree.
The trial court's judgment based on the reliable evidence as to the ultimate custodial placement that is in the best interest of the child or children, including whether DCF should be appointed as statutory parent, is entitled to "great weight." See In re Antony A., 112 Conn.App. 643, 653-54 (2009): We begin with the standard of review. "To determine whether a custodial placement is in the best interest of the child, the court uses its broad discretion to choose a place that will foster the child's interest in sustained growth, development, well-being, and in the continuity and stability of its environment . . . We have stated that when making the determination of what is in the best interest of the child, [t]he authority to exercise the judicial discretion under the circumstances revealed by the finding is not conferred upon this court, but upon the trial court, and . . . we are not privileged to usurp that authority or to substitute ourselves for the trial court . . . A mere difference of opinion or judgment cannot justify our intervention. Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference . . . In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did . . . [G]reat weight is given to the judgment of the trial court because of [the court's] opportunity to observe the parties and the evidence . . . [Appellate courts] are not in a position to second-guess the opinions of witnesses, professional or otherwise, nor the observations and conclusions of the [trial court] when they are based on reliable evidence." (Citations omitted; internal quotation marks omitted.) In re Karl J. , 110 Conn.App. 22, 26, 954 A.2d 231, cert. denied, 289 Conn. 954, 961 A.2d 420 (2008).
"The best interests of the child include the child's interests in sustained growth, development, well-being, and continuity and stability of its environment." (Internal quotation marks omitted.) In re Shyina B. , 58 Conn.App. 159, 167, 752 A.2d 1139 (2000). "In the dispositional phase of a termination of parental rights hearing, the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent's parental rights is not in the best interest of the child. In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in [§ 17a-112 (k)]." (Internal quotation marks omitted.) In re Jermaine S. , supra , 86 Conn.App. 835. The court thoroughly considered each of the seven criteria before finding that the respondent's failure to address her long-term history of substance abuse and domestic violence issues dictated that it would be in R's best interest to terminate her parental rights. In re Ryan R., supra, 102 Conn.App. at 625-27. See also In re Joseph L., 105 Conn.App. 515, 529-30 (2008); In re Anthony H., supra, 104 Conn.App. at 764 (2007); and In re Cameron C., supra, 103 Conn.App. at 760.
Although the focus in the dispositional phase "appropriately shifts from the conduct of the parent to the best interest of the child . . ." In re Romance M., supra, the sixth required finding in § 17a-112(k) is to consider . . . 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 . . .
As set forth above, the focus of many of the other required § 17a-112(k) findings also is to insure that the parents' rights and interests appropriately and properly have been considered.
Additionally, although "the best interest of the child" is referred to as a dispositional focus, the concept also appears in one of the adjudicatory grounds, Ground D, General Statutes § 17a-112(j)(3)(D), no parent-child relationship: 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 . . .
Also, General Statutes § 17a-112(q) provides that the "provisions of this section shall be liberally construed in the best interest of any child for whom a petition under this section has been filed." The seven adjudicatory grounds in General Statutes § 17a-112(j) are part of "the provisions of this section," e.g., § 17a-112.
4. DCF as statutory parent:
In performing its duties with respect to a TPR trial, this court's responsibility does not include where or with whom a child should live after a termination of parental rights, and thus this court should not enter orders concerning such matters as part of any TPR case disposition: In the dispositional phase of a termination proceeding, the court properly considers only whether the parent's parental rights should be terminated, not where or with whom a child should reside following termination.
In re Sheena I., 63 Conn.App. 713, 726, 778 A.2d 997 (2001); see also In re Davonta V., supra, 98 Conn.App. at 53. There are several statutes providing or referring to DCF as statutory parent after TPR has occurred. For example, General Statutes § 17a-93 provides: As used in sections 17a-90 to 17a-124, inclusive, and 17a-152: . . . (f) `Statutory parent' means the Commissioner of Children and Families or that child-placing agency appointed by the court for the purpose of giving a minor child or minor children in adoption . . .
General Statutes § 17a-112(m) provides: . . . The Superior Court may appoint a statutory parent at any time after it has terminated parental rights if the petitioner so requests.
In its TPR petitions, DCF has requested that it be appointed as statutory parent.
See also, e.g., General Statutes § 45a-707(7), and see General Statutes § 17a-146: . . . the Commissioner of Children and Families shall exercise and have all authority, rights, duties and functions granted to or imposed upon the Commissioner of Social Services in the general statutes in the area of adoption of children, including, but not limited to, authority . . . to act as a statutory parent, as defined in section 45a-707.
General Statutes § 17a-112(o) provides: In the case where termination of parental rights is granted, the guardian of the person or statutory parent shall report to the court within thirty days of 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 . . . If the court determines that the department has not made reasonable efforts to place a child in an adoptive placement or that reasonable efforts have not resulted in the placement of the child, the court may order the Department of Children and Families, within available appropriations, to contract with a child-placing agency to arrange for the adoption of the child. The department, as statutory parent, shall continue to provide care and services for the child while a child-placing agency is arranging for the adoption of the child.
5. Closure, stability, health, safety, continuity, stability and permanency for the child:
In determining the best interest of a child in a TPR context, see In re Ryan R., supra, 102 Conn.App. at 625-27, the court also considers and applies, inter alia, the concepts of closure and permanency: It is abundantly clear that the court gave careful consideration to the concepts of closure and permanency and did not simply use those terms as empty incantations.
CT Page 7807 In re Davonta V., supra, 98 Conn.App. at 53. The Appellate Court also referred to stability and permanency concepts in Alejandro L.: In its decision, the court found by clear and convincing evidence that the children's best interests would be served by granting the petitions to terminate the respondent's parental rights. In support of that finding, the court noted that much of the children's short lives had been spent in the custody of the commissioner, and that the children needed stability and permanency in their lives. On the basis of those facts, we conclude that the court's determination that the respondent's parental rights should be terminated was not clearly erroneous.
In re Alejandro L., supra, 91 Conn.App. at 262.
In the neglect context, the Supreme Court referred to the "dual goals of safety and permanency." In re Allison G., supra, 276 Conn. at 159.
Helping children achieve permanency has long been a goal of the federal government, see, e.g., 42 U.S.C. §§ 621, 622, 629g, 629h, 670, 671, 673b, 673c, 675 and 5113, and of the General Assembly, see, e.g., General Statutes § 46b-129(k): . . . (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 . . .
See also General Statutes §§ 17a-110a, 17a-111b and 17a-112(o). Thus, closure and stability for a child, the health and safety of a child, and continuity and stability of environment, see In re Anthony A., supra, 112 Conn.App. at 653-54, are concepts relating to permanency for the child. If parents do not rehabilitate within a reasonable time given the age and needs of the children, the requirement of permanency dictates that termination of parental rights should occur.
6. The standard of clear and convincing evidence:
In Miller v. Commissioner of Corrections, 242 Conn. 745, 794-95 (1997), Justice Borden explained such clear and convincing standard of proof: The clear and convincing standard of proof is substantially greater than the usual civil standard of a preponderance of the evidence, but less than the highest legal standard of proof beyond a reasonable doubt. It "is sustained if the evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist." (Emphasis added; internal quotation marks omitted.) State v. Bonello , 210 Conn. 51, 66, 554 A.2d 277, cert. denied, 490 U.S. 1082, 109 S.Ct 2103, 104 L.Ed.2d 664 (1989).
Although we have characterized this standard of proof as a "middle tier standard"; J. Frederick Scholes Agency v. Mitchell , 191 Conn. 353, 358, 464 A.2d 795 (1983); and as "an intermediate standard"; State v. Davis, supra , 229 Conn. 293; between the ordinary civil standard of a preponderance of the evidence, or more probably than not, and the criminal standard of proof beyond a reasonable doubt, this characterization does not mean that the clear and convincing standard is necessarily to be understood as lying equidistant between the two. Its emphasis on the high probability and the substantial greatness of the probability of the truth of the facts asserted indicates that it is a very demanding standard and should be understood as such . . . We have stated that the clear and convincing evidence standard "should operate as a weighty caution upon the minds of all judges, and it forbids relief whenever the evidence is loose, equivocal or contradictory." (Internal quotation marks omitted.) Lopinto v. Haines , 185 Conn. 527, 539, 441 A.2d 151 (1981) . . .
(Footnotes omitted.)
See also In re Cheyenne A., supra, 59 Conn.App. at 158-59; Notopoulos v. Statewide Grievance Committee, 277 Conn. 218, 226, 890 A.2d 509 (2006); In re Anthony H., supra, 104 Conn.App. at 756 (2007); Eberhardt v. Imperial Construction Serv., 101 Conn.App. 762, 923 A.2d 785 (2007); and Chernick v. Johnston, 100 Conn.App. 276, 280, 917 A.2d 1042 (2007), cert. denied, 282 Conn. 919, 925 A.2d 1101 (2007).
7. The construction of General Statutes § 17a-112:
As set forth above, General Statutes § 17a-112(q) provides that the "provisions of this section shall be liberally construed in the best interest of any child for whom a petition under this section has been filed."
However, "[f]amily reunification is an important social objective. As our Supreme Court recently has reminded us: `[A]n important goal of the child protection statutes, in addition to protecting children from abuse and neglect, is to preserve family integrity by . . . teaching parents the skills they need to nurture and care for their children.' Teresa T. v. Ragaglia, 272 Conn. 734, 754, 865 A.2d 428 (2005)." In re Christina M., 90 Conn.App. 565, 570-71, 877 A.2d 941 (2005), affirmed, 280 Conn. 474 (2006).
8. Weight to be given to testimony, including from court-appointed psychologists and other experts:
In Davonta K., supra, 285 Conn. at 488-89, the Supreme Court set forth the standards to be applied by the court in considering witness testimony, including but not limited to the testimony of child welfare professionals, which testimony has an important role in neglect and TPR trials: Parental termination litigation, including the present case, often involves testimony from various child welfare professionals. "The testimony of professionals is given great weight in parental termination proceedings . . . It is well established that [i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony . . . The credibility and the weight of expert testimony is judged by the same standard, and the trial court is privileged to adopt whatever testimony [it] reasonably believes to be credible . . . On appeal, we do not retry the facts or pass on the credibility of witnesses . . . It is the quintessential function of the fact finder to reject or accept certain evidence, and to believe or disbelieve any expert testimony . . . The trier may accept or reject, in whole or in part, the testimony of an expert offered by one party or the other." (Citations omitted; internal quotation marks omitted.) In re Carissa K. , 55 Conn.App. 768, 781-82, 740 A.2d 896 (1999) . . .
In In re Melody L., supra, 290 Conn. at 161, the Supreme Court stated that a trial court can give credence to the testimony of an expert witness even on "the ultimate issue" to be decided by the trial court: This court repeatedly has held that, "[e]xperts can . . . sometimes give an opinion on an ultimate issue where the trier, in order to make intelligent findings, needs expert assistance on the precise question on which it must pass." (Internal quotation marks omitted.) State v. Vilalastra , 207 Conn. 35, 41, 540 A.2d 42 (1988), cert. denied, 349 U.S. 926, 75 S.Ct. 775, 99 L.Ed. 1257 (1955). This understanding has been codified in § 7-3(a) of the Connecticut Code of Evidence, which provides in relevant part that "[t]estimony in the form of an opinion is inadmissible if it embraces an ultimate issue to be decided by the trier of fact, except that . . . an expert witness may give an opinion that embraces an ultimate issue where the trier of fact needs expert assistance in deciding the issue."
As the Appellate Court aptly has recognized, "[t]he trial court's exercise of discretion in admitting expert testimony is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law . . . Furthermore, [c]ourts are entitled to give great weight to professionals in parental termination cases." (Citation omitted; internal quotation marks omitted.) In re Tabitha P., 39 Conn.App. 353, 364-65 n. 8, 664 A.2d 1168 (1995); id. (concluding that trial court had not abused its discretion in admitting into evidence testimony of court-appointed evaluator's conclusions where there was no evidence that court failed to consider any other evidence in rendering its decision).
With respect to the trial court's responsibilities concerning the best interest of a child, the Supreme Court emphasized that after considering expert testimony, such court ". . . must make its own independent determination as to the best interest of the child . . .": CT Page 7811 Nevertheless, although the trial court may rely on expert testimony, it ultimately must make its own independent determination as to the best interest of the child. In re Jeisean M. , 270 Conn. 382, 398, 852 A.2d 643 (2004) ("[a]lthough we often consider the testimony of mental health experts . . . such expert testimony is not a precondition of the court's own factual judgment as to the child's best interest" [citations omitted; internal quotation marks omitted]). In sum, we must defer to both the trial court's weighing of the expert testimony presented and the trial court's independent factual determination as to what was in Davonta's best interest.
In re Davonta V., supra, 285 Conn. at 489.
The Supreme Court has set forth the parameters for a trial court's use of expert testimony in a family case: As in other areas where expert testimony is offered, a trial court is free to rely on whatever parts of an expert's opinion the court finds probative and helpful . . . In family cases in particular, it would be anomalous to require a trial court to assign particular weight to a report which is based on statements that the trial court may evaluate differently and on circumstances that may have changed. Yontef v. Yontef, 185 Conn. 275, 281-82, 440 A.2d 899 (1981).
The trial court in whole or in part need not accept a person's testimony, whether or not such person has been qualified as an expert: The law traditionally recognizes the trial court as a tribunal equipped to resolve disputed evidentiary issues, and as the "final judge of credibility." Clark v. Haggard , 141 Conn. 668, 674, 109 A.2d 358 (1954). Moreover, as we have often noted, the fact that a witness testifies as an expert does not compel the acceptance of his or her testimony as true. See, e.g., Aspiazu v. Orgera , 205 Conn. 623, 634, 535 A.2d 338 (1987).
State v. Joly, 219 Conn. 234, 237, 243, 593 A.2d 96 (1991). The Supreme Court stated that factual determinations are ". . . appropriately committed to the sound discretion of the trial court." Id. In Joly, the issue was whether a witness had been hypnotized. Id. The Supreme Court then stated: . . . In resolving this issue, the court may be aided, but is not bound, by expert opinion. Id. Such testimony must be "considered, weighed and tested like any other evidence"; id. ; and assessed "in relation to the other circumstances in evidence bearing on the question in issue"; Blake v. Blake , 207 Conn. 217, 225, 541 A.2d 1201 (1988); including, if offered, the testimony of the allegedly hypnotized witness. The trial court "is privileged to adopt whatever testimony [it] reasonably believes to be credible"; (emphasis in original) Eichman v. JJ Building Co. , 216 Conn. 443, 451-52, 582 A.2d 182 (1990); and expert testimony may be rejected in favor of other evidence found more persuasive. Transportation Plaza Associates v. Powers , 203 Conn. 364, 377, 525 A.2d 68 (1987).
In In re David W., 254 Conn. 676, 687-88, 759 A.2d 89 (2000), the Supreme Court emphasized deference to the trial court's discretion in determining the weight to be given to all or part of an expert's testimony: Previously, we held that "[t]he credibility of expert witnesses and the weight to be accorded their testimony are within the province of the trier of facts, who is privileged to adopt whatever testimony he reasonably believes to be credible." (Internal quotation marks omitted.) Transportation Plaza Associates v. Powers , 203 Conn. 364. 378, 525 A.2d 68 (1987). Furthermore, it is well settled that the trial court possesses discretion in ruling, not only on the qualifications of expert witnesses, but on the admissibility and weight of their opinions and testimony. State v. Kemp , 199 Conn. 473, 476, 507 A.2d 1387 (1986). "As the witness qualified as an expert, any objection to his testimony would go to its weight rather than to its admissibility." (Emphasis added; internal quotation marks omitted.) State v. Avila , 166 Conn. 569, 576, 353 A.2d 776 (1974). "It is rare for this court to find that a trial court has erred in a ruling permitting expert testimony." State v. John , 210 Conn. 652, 677, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S.Ct. 84, 107 L.Ed.2d 50 (1989) . . .
In summary, it is the function of each trial court to determine the credibility of each witness in the process of weighing and interpreting the evidence before it. State v. Richards, 113 Conn.App. 823, 832 (2009).
9. The balancing of the legitimate interests of the parents, children and the state of Connecticut:
Each termination of parental rights case requires consideration of the interests of all parties, but as set forth above, in the dispositional phase the statutory standards require a focus on the best interests of the child, not the primary wishes or best interests of the parents. Nevertheless: The desire and right of a parent to maintain a familial relationship with a child cannot be separated from the desire and best interest of a child either to maintain or to abandon that relationship, or the interest of the state in safeguarding the welfare of children. The legitimate interests of parent, child and state require a balancing of the factors involved in those interests . . . In every case involving parental rights, a struggle exists between parents and the state to determine what is in the child's best interest, the child being the focus of the struggle . . .
(Citations omitted.) In re Shaquanna M., 61 Conn.App. 592, 598-99, 767 A.2d 155 (2001).
Since Meyer v. Nebraska, 262 U.S. 390, 399, 401-03, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), the United States Supreme Court has recognized the fundamental liberty interest of parents in the custody, care and control of their children. Most recently in Fish v. Fish, supra, Justice Katz's dissenting opinion, the line of Supreme Court cases, beginning with Meyer, in which this fundamental liberty interest is recognized, has been set forth: The Supreme Court's decisions recognizing this fundamental right date back to at least 1923. See Meyer v. Nebraska , 262 U.S. 390, 399, 401-03, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (concluding that "proficiency in foreign language . . . is not injurious to the health, morals or understanding of the ordinary child" and recognizing right of parents to "establish a home and bring up children" and to "control the education of their own"); Pierce v. Society of Sisters , 268 U.S. 510, 534-35, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (holding that state could not interfere with parents' decision to send children to private schools when decision was "not inherently harmful" and recognizing right "to direct the upbringing and education of children under their control"); Wisconsin v. Yoder , 406 U.S. 205, 232, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (exempting Amish from state compulsory education law requiring children to attend public school until age eighteen, recognizing that "primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition"); see also Prince v. Massachusetts , 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944) ("[i]t is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder"); Stanley v. Illinois , 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) ("[i]t is plain that the interest of a parent in the companionship, care, custody, and management of his or her children `come[s] to this [c]ourt with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements' "); Quilloin v. Walcott , 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978) ("[w]e have recognized on numerous occasions that the relationship between parent and child is constitutionally protected"); Parham v. J.R. , 442 U.S. 584, 602, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979) ("Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course."); Santosky v. Kramer , 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (discussing "[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child"); Washington v. Glucksberg , 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) ("[i]n a long line of cases, we have held that, in addition to the specific freedoms protected by the [b]ill of [r]ights, the `liberty' specially protected by the [d]ue [p]rocess [c]lause includes the righ[t] . . . to direct the education and upbringing of one's children" [citations omitted]).
Fish v. Fish, supra, 285 Conn. at 93 n. 3 (Katz, J., dissenting).
In Parham, the United States Supreme Court recognized that parents, who have traditional interests in and responsibility for the upbringing of their child, retain a substantial, if not the dominant, role in decisions for their child(ren), absent a finding of neglect or abuse as has occurred in this case: Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course; our constitutional system long ago rejected any notion that a child is "the mere creature of the State" and, on the contrary, asserted that parents generally "have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations." Pierce v. Society of Sisters , 268 U.S. 510, 535 (1925). See also Wisconsin v. Yoder , 406 U.S. 205, 213 (1972); Prince v. Massachusetts , 321 U.S. 158, 166 (1944); Meyer v. Nebraska , 262 U.S. 390, 400 (1923). Surely, this includes a "high duty" to recognize symptoms of illness and to seek and follow medical advice. The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children. 1 W. Blackstone, Commentaries; 2 J. Kent, Commentaries on American Law.
As with so many other legal presumptions, experience and reality may rebut what the law accepts as a starting point; the incidence of child neglect and abuse cases attests to this. That some parents "may at times be acting against the interests of their children" as was stated in Bartley v. Kremens , 402 F.Sup. 1039, 1047-48 (E.D.Pa. 1975), vacated and remanded, 431 U.S. 119 (1977), creates a basis for caution, but is hardly a reason to discard wholesale those pages of human experience that teach that parents generally do act in the child's best interests. See Rolfe MacClintock 348-49. The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.
Nonetheless, we have recognized that a state is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized. See Wisconsin v. Yoder, supra , at 230; Prince v. Massachusetts , supra , at 166 . . .
Parham v. J.R., supra, 442 U.S. at 602-03.
In his concurring opinion, Justice Stewart rejected the idea that all parents act in the best interests of their children and that all parents are fit parents: To be sure, the presumption that a parent is acting in the best interests of his child must be a rebuttable one, since certainly not all parents are actuated by the unselfish motive the law presumes. Some parents are simply unfit parents. But Georgia clearly provides that an unfit parent can be stripped of his parental authority under laws dealing with neglect and abuse of children.[fn 7.]
Id., 624 (Stewart, J., concurring).
In footnote 7, Justice Stewart referred to Justice Brennan's concurring and dissenting opinion which contained the following: In our society, parental rights are limited by the legitimate rights and interests of their children. "Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves." Prince v. Massachusetts , 321 U.S. 158, 170 (1944). This principle is reflected in the variety of statutes and cases that authorize state intervention on behalf of neglected or abused children and that, inter alia , curtail parental authority to alienate their children's property, to withhold necessary medical treatment, and to deny children exposure to ideas and experiences they may later need as independent and autonomous adults.
This principle is also reflected in constitutional jurisprudence. Notions of parental authority and family autonomy cannot stand as absolute and invariable barriers to the assertion of constitutional rights by children . . .
Id., 630-31 (Brennan, J., concurring in part and dissenting in part).
Connecticut also balances the constitutional rights of parents against the duty and responsibility of the state to insure the health, safety and welfare of children. See, e. g., In re Stephen M., 109 Conn.App. 644, 646 (2008): To facilitate the state's parens patriae interest, the legislature has enacted a comprehensive scheme to protect children who are at risk due to their parents' inability or failure to provide for their well-being. See General Statutes § 17a-101; In re T.K. , 105 Conn.App. 502, 503-04, 939 A.2d 9, cert. denied, 286 Conn. 914, 945 A.2d 976 (2008). The statutory scheme takes into consideration, however, the fundamental precept that "[p]arents have a constitutionally protected right to raise and care for their own children." In re Juvenile Appeal (83-DE) , 190 Conn. 310, 318-19, 460 A.2d 1277 (1983) . . .
and In re Juvenile Appeal (83-DE), 190 Conn. 310, 318-19, 460 A.2d 1277 (1983). . . . Parents have a constitutionally protected right to raise and care for their own children. Stanley v. Illinois , 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). This right is not free from intervention by the state, however, when the continuing parens patriae interest of the state in the well being of children is deemed by law to supercede parental interests. See General Statutes 17-43a, 46b-129(e); In re Juvenile Appeal (83-BC) , 189 Conn. 66, 77, 454 A.2d 1262 (1983); Anonymous v. Norton , 168 Conn. 421, 430, 362 A.2d 532, cert. denied, 423 U.S. 935, 96 S.Ct. 294, 46 L.Ed.2d 268 (1975).
In an earlier decision, In re Juvenile Appeal (83-CD), 189 Conn. 276, 282-84, 293, 455 A.2d 1313 (1983), the Supreme Court rejected a respondent parent's argument that General Statutes § 46b-129(b) was unconstitutional because it was an impermissible infringement on such parent's right to family integrity. Recently in Fish v. Fish, 285 Conn. 24, 73-74, 939 A.2d 1040 (2008), the Supreme Court balanced parents' constitutional liberty interests against a child's welfare and safety to apply the regular civil fair preponderance standard of proof in third party custody proceedings: . . . Moreover, this court determined more than two decades ago that the fair preponderance standard is constitutionally permissible in temporary custody and neglect proceedings because the child's welfare and safety represents a strong countervailing interest in relative equipoise with the liberty interest of the parent. See In re Juvenile Appeal (83-CD) , supra , 189 Conn. 287 (when child's interest no longer coincides with that of parent, magnitude of parent's right to family integrity is diminished); see also In re Juvenile Appeal (84-AB) , 192 Conn. 254, 263-64, 471 A.2d 1380 (1984).
Accordingly, although we agree with the concurrence that the interest of the parent is extremely significant and may require additional protection by imposing a heightened standard of proof in other circumstances, there is well established precedent for applying the fair preponderance standard in third party custody proceedings.
This is a case where each of the children was removed from the custody of the mother and the father on September 24, 2006, under a ninety-six-hour hold after each of the parents was incarcerated because of domestic violence involving, inter alia, the use of and a stabbing with a knife when the children were in the home. Although the father was intoxicated, and the children had been awakened by the domestic violence, the mother left the children in the home with the father in order to buy cigarettes. She did not call the police from the store where she purchased such cigarettes, but instead returned home to continue the domestic dispute with the father. After their arrests, there was no adult left in the home to care for the children and DCF had to become involved for their protection. On September 27, 2006, the court granted DCF temporary custody of the children. On May 7, 2007, each of the children was adjudicated neglected and committed to the care, custody and guardianship of DCF, which commitment remained in effect through and after the end of the TPR trial. Beginning on September 24, 2007, and for in excess of thirty-one months thereafter to date, the family has not been an intact family. The parents thus do not have the benefit of any presumption that they are fit to care for such children. Compare Roth v. Weston, 259 Conn. 202, 216, 789 A.2d 431 (2002). See also Dutkiewicz v. Dutkiewicz, 289 Conn. 362, 378 n. 11 (2008): As we noted in Roth , "[t]here are . . . limitations on these parental rights. Some of these limitations arise out of an appreciation of the state's long recognized interests as parens patriae. See Reno v. Flores , 507 U.S. 292, 303-04, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993); Santosky v. Kramer , 455 U.S. 745, 766, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Parham v. J.R. , 442 U.S. 584, 605, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979); Prince v. Massachusetts , 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944); see also General Statutes § 10-204a (requiring parents to immunize children prior to school enrollment); General Statutes §§ 14-100a, 14-272a (requiring child restraint in vehicles); General Statutes § 17a-81 (authorizing emergency medical treatment where parent withholds consent); General Statutes §§ 31-23, 31-24 (restricting child labor from certain occupations or workplaces); General Statutes § 53-21a (prohibiting parents from leaving child unsupervised in public accommodation or vehicle). Furthermore, it is unquestionable that in the face of allegations that parents are unfit, the state may intrude upon a family's integrity. Parham v. J.R. , supra , 603; see General Statutes § 17a-101g (removal of child where imminent risk of harm); General Statutes §§ 17a-112(j) 45a-717 (termination of parental rights)." Roth v. Weston, supra , 259 Conn. 224.
Former Chief Justice Peters has noted: Cases involving the termination of parental rights are always difficult . . . Accordingly, the court sought the proper balance between the parents' constitutionally protected interest in the care, custody and control of their children, and the interest of the state, acting as parens patriae, to protect the children's health and safety.
In re Christina M., supra, 90 Conn.App. at 566-67. That proper balance is the standard for the court in this case.
WITH RESPECT TO THE MOTHER AND THE FATHER OF GIOVANNI, WESLEY AND RAVAN, DCF HAS PROVED, BY CLEAR AND CONVINCING EVIDENCE, THE GROUND B ALLEGATIONS OF SUCH PETITIONS.The court finds that DCF has alleged and proved, by clear and convincing evidence, that
(1) this court has jurisdiction over the matter and the parties;
(2) there is no other action pending in any other court affecting custody of Giovanni, Wesley and Ravan known to this court. Neither the mother nor the father has claimed to be affiliated in her or his lineage with any Native American tribe;
(3) on May 7, 2007, Giovanni, Wesley and Ravan were adjudicated neglected, and each was committed to the care, custody and guardianship of DCF;
(4) the mother of Giovanni, Wesley and Ravan, who were adjudicated neglected, is unable or is unwilling to and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the ages and needs of Giovanni, Wesley and Ravan as of the date of the filing of the TPR petitions or as of February 25, 2009, the last date of the TPR hearing, she could assume a responsible position in the life of Giovanni, Wesley and Ravan as their day-to-day, full-time parent;
(5) prior to and after filing its May 23, 2008, termination petitions, DCF made reasonable efforts to reunify the mother with Giovanni, Wesley and Ravan through offers of and provision of services, but the mother was not able to reach a point after the May 7, 2007, adjudications of neglect where reunification with her was in the best interest of Giovanni, Wesley and Ravan;
(6) the father of Giovanni, Wesley and Ravan, who were adjudicated neglected, is unable or is unwilling to and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the ages and needs of Giovanni, Wesley and Ravan as of the date of the filing of the TPR petitions or as of February 25, 2009, the last date of the TPR hearing, he could assume a responsible position in the life of Giovanni, Wesley and Ravan as their day-to-day, full-time parent; and
(7) prior to and after filing its May 23, 2008, termination petitions, DCF made efforts that were reasonable under the circumstances of the father's unavailability because of his incarceration and his out-of-state residence thereafter to reunify the father with Giovanni, Wesley and Ravan, but the father was not able to reach a point after the May 7, 2007, adjudications of neglect where reunification with him was in the best interest of Giovanni, Wesley and Ravan.
THE BEST INTEREST OF GIOVANNI, WESLEY AND RAVAN:
The court has considered the best interest of Giovanni, Wesley and Ravan. The court has considered whether it is in the best interest of any of Giovanni, Wesley and Ravan to be returned to the mother or to the father including whether the mother or the father reasonably could be expected and relied upon to provide the safe, secure, nurturing, stable and permanent environment idealized in the statutes and case law, and the court has considered Giovanni's, Wesley's and Ravan's ". . . interests in sustained growth, development, well-being, and continuity and stability of [their] environment . . ." In re Ryan R., 102 Conn.App. 608, 625-26 (2007). Unfortunately for Giovanni, Wesley and Ravan, since September 24, 2006, the mother and the father have not provided and currently are unable to provide each of them with such safe, secure, nurturing, stable and permanent environment that addresses and is responsive to their individual or special circumstances and needs. On the other hand, in the care of the two sets of non-relative foster parents, each has been and is receiving love, nurturing and appropriate care in a stable environment.
In accordance with applicable federal and state law, the court finds, by clear and convincing evidence, that it is in the best interest of Giovanni, Wesley and Ravan and that it is necessary for each of their well-being, growth, development, safety, security, stability, continuity, consistency and permanency, and for closure, that the rights of the biological mother and the biological father be terminated.
CONCLUSION AND ORDERS:
Having considered the evidence and the statutory, Practice Book and case law requirements, the court finds, by clear and convincing evidence:
(a) DCF proved by clear and convincing evidence that the mother and the father of Giovanni, Wesley and Ravan, each of whom was adjudicated neglected on May 7, 2007, had failed as of May 23, 2008, the date of the TPR petitions (and as of February 25, 2009, the end of the TPR hearing), to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the ages and needs of Giovanni, Wesley and Ravan and their individual and special circumstances and needs, either could assume a responsible continuous parenting position in Giovanni's, Wesley's and Ravan's lives; and
See, e.g., In re Halle T., supra, 96 Conn.App. at 835-36 (page 22, supra):
. . . [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 . . .
For example, although given opportunities to do so, the mother has not yet learned how to deal with the children's trauma caused by her behavior and that of the father.
(b) it is in the best interest of Giovanni, Wesley and Ravan to terminate the parental rights of the biological mother and the biological father.
Accordingly, it is hereby ORDERED that the parental rights of the mother and the father to Giovanni, Wesley and Ravan are hereby terminated.
The commissioner of the department of children and families is appointed as the statutory parent of Giovanni, Wesley and Ravan. The initial status report concerning Giovanni, Wesley and Ravan shall be submitted, as required, within thirty days hereof. Quarterly reports and annual permanency plans shall be submitted as required in accordance with statutory requirements, including those set forth in General Statutes § 17-112(o).
Judgment shall enter accordingly.