Opinion
No. H14-CP06-008675-A
November 5, 2008
MEMORANDUM OF DECISION RE PETITION FOR TERMINATION OF PARENTAL RIGHTS
The Commissioner of the Department of Children and Families ("DCF", the "Department" or the "petitioner") seeks termination of the parental rights of the respondent mother ("Mother") and the respondent father ("Father") the biological parents of Lana A. ("Lana"). Mother was represented by legal counsel at trial and opposed the termination of her parental rights with respect to Lana. Father, who earlier appeared and had counsel appointed for him, did not appear at the trial. Father has been defaulted for failure to appear.
In addition, pursuant to General Statutes § 46b-129(k), on April 11, 2008 DCF filed a Motion to Review Permanency Plan for the child. The plan proposed by the petitioner was termination of the parental rights and adoption. On May 9, 2008 Mother objected to such plan.
The court finds that the court has jurisdiction and that there is no known action pending in any other court affecting custody of this child. There is no claim of Native American affiliation of the child.
The proceedings relative to the termination of parental rights are governed by Connecticut General Statute § 17a-112 et seq. In a proceeding for termination of parental rights, the petitioner must first prove, in the adjudicatory phase, a ground for termination alleged in the petition, as of the date of filing the petition or the last amendment, by clear and convincing evidence. In re Joshua Z., 26 Conn.App. 58, 63 (1991); Practice Book § 32a-3(b), 35a-7. Only one ground need be established for the granting of the petition. In re Juvenile Appeal (84-BC), 194 Conn. 252, 258, 479 A.2d 1204 (1984); In re Shane P., 58 Conn.App. 234, 242-43 (2000). However, "[i]n the adjudicatory phase, the court may rely on events occurring after the date of the filing of the petition to terminate parental rights when considering the issue of whether the degree of rehabilitation is sufficient to foresee that the parent may resume a useful role in the child's life within a reasonable time." In re Stanley D., 61 Conn.App. 224, 230 (2000) (emphasis in original).
If a ground for termination is proven, the court must next consider the disposition stage. Therein, the court must consider whether the facts, as of the last day of trial, establish by clear and convincing evidence that termination is in the child's best interest. As permitted under our law, the evidence as to both adjudicatory and dispositional phases was presented in the trial. See In re Eden F., 250 Conn. 674, 688-89 (1999); In re Juvenile Appeal (84-BC), supra, 194 Conn. at 258.
Father has been defaulted for failure to appear at the termination of parental rights trial. This Court finds, by clear and convincing evidence, Father received notice pursuant to the Practice Book. Juvenile proceedings being, essentially, civil proceedings, the default against Father effectively admits the truth of the petitioner's material allegations. This admission satisfies the petitioner's obligations. However, the Court will review the evidence submitted by the petitioner in making its determination.
I FACTUAL FINDINGS
The petitioner presented a total of eight witnesses and twenty exhibits (Exhibits 1-20). The respondent Mother presented twelve exhibits (Exhibits B-M) and a total of thirteen witnesses including one witness whose testimony was presented as a stipulation of facts agreed upon by Mother and the petitioner and Mother. The court granted, without objection, the Motion for Judicial Notice filed by the petitioner on August 29, 2008. The credible and relevant evidence offered at trial and a review of the judicially noticed court orders, memoranda and findings supports the finding of the following facts. Unless otherwise specified, all facts are found by clear and convincing evidence.
The court has also taken judicial notice of court records including court memoranda and orders made in these cases for their existence, content and legal effect. See Colin C. Tait Eliot D. Prescott, Tait's Handbook of Connecticut Evidence §§ 2.3.4(d), 2.4.1 and 2.4.2. (4th ed. 2008).
A. Procedural History
On July 8, 2006, the Department issued a 96-hour administrative hold on behalf of Lana and she was placed in the temporary care of the Department. The hold was issued as a result of a referral received on July 7, 2006 from Connecticut Children's Medical Center ("CCMC") when Lana was found to have multiple rib fractures and bruising.
On July 12, 2006 the Department filed an ex parte Order of Temporary Custody ("OTC"), a Neglect Petition and a Termination of Parental Rights ("TPR") Petition. The OTC was granted by the Court, Quinn J., on the same date and subsequently sustained by agreement on August 21, 2006. The trial on the co-terminus neglect and termination of parental rights petition began on February 20, 2007. After a recess it was reported to the court by the Assistant Attorney General the parties had reached an agreement. The court granted an oral motion for the withdrawal of the TPR Petition, the respondent parents entered into pleas of nolo contendere to all of the allegations of neglect and the court, Bear J., found by clear and convincing evidence that Lana was neglected. She was committed to the care and custody of the Department on that day and has remained committed to date.
On July 18, 2007 the Department filed another TPR Petition as to Father. On November 30, 2007 the Department filed another TPR Petition as to Mother. The petitioner filed on December 19, 2007 a Motion to Amend the Termination of Parental Rights Petition filed as to Father to add Ground C. On December 28, 2007 the court granted foregoing Motion to Amend and ordered both petitions be consolidated for trial.
B. Mother
Mother is twenty-eight years old. She was born in Hartford, Connecticut. She reported her parents divorced when she was approximately one year old. She lived with her mother ("MGM") until she was five at which time her father ("MGF") gained sole custody of Mother and her older brother. Mother reported being sexually molested by her paternal grandfather at age six or seven as well as inappropriate sexual contact by paternal grandmother. She further reported MGM moved to Florida when Mother was eight. Mother ran away from home at age sixteen to live with MGM in Florida; she returned to Connecticut one year later. She did not finish high school nor earn her GED. She reported having taken classes at a local community college. Mother's employment history consists of varied, relatively short-term, clerical and administrative jobs, employment in child care and animal care as well as telemarketing.
Mother has never married and has only one child, Lana. Mother, before becoming involved with Father, had a long-term relationship with another man. She reported one incident of domestic violence in that relationship. Mother also reported being hospitalized twice as a result of suicide attempts and depression — once in September 2004 and once in June 2005. Mother also has a history of cutting herself with the last reported incident being when she was hospitalized in 2004.
Mother began her relationship with Father in June 2005. Mother has been the victim of several known incidents of domestic violence perpetrated by Father including an incident in December 2005 (when Mother would have been pregnant with Lana) when he punched and broke the windshield of her car while she was inside of it. He has also punched a wall, damaged a phone to keep her from calling for assistance, pulled her hair, kicked a dog and, reportedly, threatened to kill Mother and Lana if she left him. She filed for a restraining order in June 2006, but did not pursue it. Mother reported on several occasions that she and Father ended their relationship in August 2006.
As to her criminal history, Mother reported that at age sixteen she was sent to York Correctional Institution for one month due to a burglary charge. Mother was also arrested in 2003 for an assault on another woman at UCONN during spring break weekend; she was charged with assault 3rd, criminal trespass 1st and breach of peace 2nd. Mother was also arrested on (i) October 13, 2005 (when she would have been pregnant with Lana) for Larceny 6th and Robbery 3rd and (ii) June 1, 2006 (a little more than one month after Lana's birth) for Larceny 6th.
Additional facts will be set forth below as warranted.
C. Father
Father is 23 years old. He was born in Hartford, Connecticut. He reported that he lived with and was primarily raised, together with his father's siblings, by his paternal grandmother since he was six months old. He has had little, if any, relationship with his mother.
Father was expelled from school in 4th grade for pushing a teacher although he did ultimately progress to high school. He was truant, suspended a few times and ultimately left after 10th grade. He reportedly received his GED while incarcerated in 2003 to 2004 for sale of illicit substances. He has had no significant employment — with only one sustained period of employment which consisted of six months from November 2005 to April 2006 working in a warehouse.
Father has never been married. In addition to Lana he has two other children by two different women. Father reported that, to him, the whereabouts of one of his children is unknown. He allegedly sees his other daughter regularly. There is no indication or report that he supports any of his children — which assumption is supported both by his history of being unemployed or underemployed and also by a family support petition filed by Mother in July 19, 2006 with respect to Lana.
Father admitted to smoking an illegal substance during the week prior to Lana's initial removal. He further tested positive for marijuana in November 2006 and, as set forth below, Father was arrested October 14, 2007 for possession of marijuana.
Father admitted to DCF and the court evaluator several incidents of domestic violence toward Mother. Despite that history, Father reported to the court evaluator that it didn't "feel right" that DCF forced him and Mother to break up (Exhibit 19, page 12). He also acknowledged to the evaluator that he wasn't "mad" at Mother ( id.).
As to his criminal history, Father admitted to a juvenile history and further informed the court-appointed evaluator that he is well known to the New Britain police department as he has been a party to sixty incidents in the prior ten years ( id.); DCF did find that one incident report list obtained from the New Britain Police Department did list Father's name in connection with sixty incidents from 1997 to 2006. Father's offenses include assault, disorderly conduct, violation of protective orders, failure to appear, possession and sale of narcotics, evading responsibility and criminal mischief.
Additional facts will be set forth below as warranted.
D. The Child
Lana was born on April 28, 2006 to Mother and Father. She was born full term with no health issues. Prior to the infliction of injuries upon her she remained healthy.
Mother and Father were the primary caretakers for Lana although Father reported being out of the house for a few days before Lana was taken to the hospital (Exhibit 16). A maternal aunt also reportedly stayed with Mother, Father and Lana for a period of approximately two weeks before July 7, 2006. The maternal aunt reportedly assisted Mother with Lana, but Mother had a baby monitor and heard nothing amiss (Exhibit 15).
On the morning of July 7, 2006 Mother and Father called Lana's pediatrician with a concern after noticing bruises on Lana's body although Mother's statement to the police stated she first noticed bruising about four days earlier. (Exhibit 15.) The pediatrician on seeing Lana referred them to CCMC. Dr. Berrien, the CCMC physician, made an initial assessment that Lana had suffered fractures of the posterior aspect of the right and left 10th and 11th ribs with callous; right 3rd, 4th, 5th, 6th and 7th anterior fractures and left 2nd, 3rd, 4th 5th, 6th and 7th fracture anteriorly. In addition metaphyseal fractures were noted on the distal right femur and proximal and distal left tibia — pending radiologist confirmation. There was a faint bruise extending from the right temple down anterior to the right ear. Lana had a conjunctival hemorrhage on the lateral aspect of the right eye. A number of petechiae were noted behind the ears. There was bilateral linear bruising on the lower chest and abdomen. On the medial aspect of the left upper arm there was a bruise and a large bruise extended from the left deltoid region onto the left scapular region. On the lower left chest posteriorly another linear bruise was found. On the lower extremities there were bruises on the medial aspects of both calves which extended posteriorly onto the calves and popliteal fossae. (Exhibit 1, page 2.)
Dr. Berrien's assessment was that Lana experienced significant traumatic injuries for which there was no explanation. Dr. Berrien's assessment and the Petitioner's expert witness, Dr. Andrea Asnes, found the rib fractures to likely have been caused by abusive squeezing of the chest and the metaphyseal fractures of the femur and tibia to likely have been caused by traction on the joints — by a grabbing or forceful twisting. Dr. Berrien further indicated the petechiae of the head and the scleral hemorrhage could have been due to attempted suffocation. (Exhibit 1.) Dr. Asnes testified the bruising on the head and around the eye were due to trauma with the likely mechanism being a forceful striking or hitting of the head with a hand or an object. The evidence is clear and convincing the cause of the injuries was not accidental.
As to the timing of the injuries, Dr. Berrien initially dated the posterior rib fracture as being likely seven days old (Exhibit 1). Dr. Asnes, who had the benefit of reviewing the x-rays taken at CCMC, testified that based on the amount of callous present the rib fractures occurred not earlier than seven to ten days before the x-rays were taken, but a conservative estimate of 2 weeks before Lana was taken to CCMC. As for the bruising, both Dr. Berrien and Dr. Asnes opined that the bruising occurred within 24 to 48 hours before Lana was taken to CCMC and in any even not more than a few days before. (Exhibit 1.) The court finds by clear and convincing evidence that Lana was on at least one occasion subjected to severe physical injury.
Dr. Asnes testified, to a reasonable degree of medical certainty, that the rib and leg fractures would cause pain and the child would likely cry as a result thereof. Further the impact that caused the bruising would cause pain and the child would likely cry as a result thereof. While there was further testimony that the child, upon presentment to the hospital, was not crying, but rather alert and cooing at Mother, Dr. Asnes testified the child's behavior at the hospital means only the child was not in acute pain at the time of the exam and nothing more.
Mother and Father each denied injuring Lana and indicated their belief that the other could not be responsible for harming Lana — this despite Father's assaultive and abusive history. Mother and Father appeared, later and after time for reflection, to blame the maternal aunt for the injuries. Mother was cooperative with the police in their investigation; neither Father nor the maternal aunt was cooperative. The investigation into the injuries did not reveal the perpetrator(s) of the violence which caused Lana's injuries. The court finds the cause of the injuries remains unexplained.
Lana was placed with a foster family on the second day after her commitment. She remained with that family until she was returned to Mother's care, under commitment, on July 19, 2007. On October 16, 2007 Lana was once again removed from Mother's care as a result of the incident occurring on October 14, 2007 (as more described below) and she was returned to the prior foster family. She remains with that family to date.
The foster family reported a notable change in Lana's behavior, including sleep disturbances and unprovoked aggression toward adults, when she was returned to their care. As a result thereof, she was referred by DCF for evaluation by Dr. Bunk. Dr. Bunk concluded that Lana was evidencing symptoms consistent with Reactive Attachment Disorder (Exhibit 20, page 3). Lana was found to be bonded to and have an attachment to the foster parents albeit not a secure and sufficient attachment. Dr. Bunk's credible testimony was that a long-term, consistently safe and nurturing home environment would help to ameliorate Lana's insecurity and she recommended the current foster parents as being the "optimal choice" for Lana's care. (See also Exhibit 20, page 4.)
Lana is also bonded with Mother. The evidence suggests a loving relationship between the two of them.
Lana has healed from her injuries. She is reported to be a healthy, happy toddler who is medically up to date.
Additional facts will be set forth below as warranted.
D. Specific Steps:
On February 20, 2007, the date of the neglect adjudication, final specific steps were issued by the court (Mother's steps were presented by Mother as Exhibit F and the court has taken judicial notice of Father's steps). The court finds the following with respect to the Specific Steps and as to Mother's and the Father's compliance therewith:
As to Mother and Father: Keep all appointments set by or with DCF. Cooperate with DCF home visits, announced and unannounced and visits by the child's court-appointed attorney or guardian ad litem.Mother has been compliant with this step except for a few instances when Casey Family Services had difficulty trying to arrange contact with Mother.
Father has not been compliant with this step. In March 2007 Father told DCF he was moving out of state, but later reported that he was not. He has not been in contact with the Department since May 2007. There have been no home visits possible.
As to Mother and Father: Keep child's whereabouts and your own whereabouts known to DCF, your attorney and the attorney for the child.
Mother was compliant with this step — with one notable exception — when Mother secreted herself and Lana at MGF's home to avoid Lana's removal after the October 14, 2007 incident.
Father has not been compliant with this step. He has not kept the Department informed of his whereabouts. His attorney reported on the first day of trial that he had not had recent contact with Father.
As to Mother and Father: Participate in counseling and make progress toward identified goals.
Mother's steps required individual counseling and identified the goal of addressing Mother's mental health issues as identified by clinician. After Lana's first removal, Mother referred herself to Wheeler Clinic obviating the need for DCF to do the same. She was referred to the YMCA for parenting classes and to Casey Family Services for reunification. Mother attended the services and was cooperative. After Lana was removed the second time, Mother was referred to ABH for individual counseling. Mother has declined to accept the re-referrals attempted by the Department for domestic violence counseling.
Father's steps required that he participate in individual and domestic violence programs. He began parenting classes at the YMCA in 2006, but was not compliant. He was referred to DOVE for domestic violence counseling and was unsuccessfully discharged in February 2007 for lack of attendance. Father also failed to complete the substance abuse intervention group to which he was referred and engage in individual counseling.
As to Mother: Accept and cooperate with in-home support services referred by DCF.
Mother was initially compliant with Casey Family Services, although Mother missed two parenting classes with Casey in September 2007 and the service had difficulty arranging visits with Mother shortly before Lana's second removal. Mother was not in compliance when it was discovered in October 2007 that Father was at Mother's house and that Mother had been in contact with Father.
As to Mother and Father: Recommended service providers for parenting/individual/family counseling, in-home support services and/or substance abuse assessment/treatment:Mother's recommended provider was Wheeler Clinic for individual counseling.
Father recommended providers were Wheeler Clinic for the Dove program, substance abuse assessment and treatment and for individual counseling as recommended by DOVE or DCF.
As to Mother and Father: Cooperate with court-ordered evaluations or testing and follow recommendations.
Mother and Father did cooperate with the court-ordered evaluation.
As to Mother and Father: Secure and maintain adequate housing and legal income.
Mother was compliant.
Father has not been compliant. He has not provided any indication that he has or is capable of securing and maintaining employment and independent housing that would be at all adequate.
As to Mother and Father: Do not engage in substance abuse and submit to random drug testing:
Mother has been generally compliant with this step. She submitted to random drug screens at Wheeler Clinic through July 2007. Her urine test on October 18, 2007 was negative however Mother has refused to submit to a hair test as thereafter requested by DCF.
Father had a positive screen for marijuana in November 2006. He has not submitted to random drug testing since January 2007. The court notes that Father was arrested for possession of marijuana on October 14, 2007.
As to Father: Have no involvement or further involvement with the criminal justice system.
Father was arrested in April, May and October 2007.
As to Mother and Father: Immediately advise DCF of any changes in the composition of the household.
Mother has not complied with this step as, at the time that Lana was reunified with Mother under commitment, Mother did not advise the Department that her cousin, a convicted felon, was staying with her or that Father was "visiting" at the household.
Father has not maintained sufficient contact with the Department to make any finding in this regard meaningful.
As to Mother and Father: Visit the child as often as DCF permits.
Mother has been compliant with this step.
Father has not visited the child as DCF permitted since May 2007. Father, in complicity with Mother, appears to have visited Lana at times unknown to DCF.
II
ADJUDICATION
The petition filed by DCF for the termination of Mother's parental rights alleges two grounds in § 17a-112(j)(3) — grounds B(i) and C. Mother contested the termination of her parental rights. The petition filed by DCF, as amended, for the termination of Father's parental rights alleges three grounds in § 17a-112(j)(3) — grounds A, B(i) and C. Only one ground needs to be established for the granting of the petition. In re Juvenile Appeal (84-BC), supra, 194 Conn. 258; In re Karrlo K., 44 Conn.Sup. 101, 106 (1994), aff'd., 40 Conn.App. 73 (1996).
A. Location and Reunification § 17a-112(j)(1)
In order to terminate parental rights, unless the court grants the petition due to the consent of the respondent parent, DCF must prove, by clear and convincing evidence, the statutory element requiring "reasonable efforts to locate the parent and to reunify the child with the parent." C.G.S. § 17a-112(j)(1). "The court need not make that finding, however, if the evidence establishes that the parent is unable or unwilling to benefit from reunification efforts." In re Shaiesha O., 93 Conn.App. 42, 47 (2005).
"The word reasonable is the linchpin on which the department's efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof." Id. at 48. "Although [n]either the word reasonable nor the word efforts is . . . defined by our legislature or by the federal act from which the requirement was drawn . . . [r]easonable efforts means doing everything reasonable, not everything possible." (Internal quotation marks omitted; citation omitted.) In re Ryan R., 102 Conn.App. 608, 619 (2007); In re Mariah S., 61 Conn.App. 248, 255, 763 A.2d 71 (2000). In re Shaiesha O., the Appellate Court held that the court must look to events prior to the date the petition was filed, to determine whether reasonable efforts at reunification were made, 93 Conn.App. 42, 47, 887 A.2d 415 (2005).
Mother: As detailed in this decision and as evidenced by the exhibits and testimony presented, DCF referred Mother for services. The offered services included, without limitation, individual counseling, domestic violence counseling, substance abuse testing, evaluation and counseling, and reunification services. The court hereby finds by clear and convincing evidence the petitioner has made reasonable efforts to reunify Mother with Lana. The court finds further despite the services Mother received she continued to have contact with Father notwithstanding (i) the admitted domestic violence he perpetrated on Mother and threatened as to Lana; (ii) Lana having suffered serious, life threatening injuries for which no explanation has been given; (iii) Father not cooperating with the New Britain police to find the perpetrator of the assault(s) on Lana; and (iv) Father not engaging with services with the Department. The court finds by clear and convincing evidence that Mother has not retained or been able to apply the lessons imparted to her during her attendance at services and therefore Mother is unable or unwilling to benefit from reunification efforts.
Father: DCF referred Father to services, including substance abuse and domestic violence counseling at Wheeler Clinic. DCF also offered visitation services to Father. The evidence is clear and convincing that DCF made reasonable efforts to locate Father and reunify him with Lana. The court further finds, by clear and convincing evidence, as Father has neglected to remain in contact with the Department, attend services and visit with Lana on terms known and acceptable to DCF, Father is unable or unwilling to benefit from reunification efforts.
B. Termination of Parental Rights on Ground A
DCF claims Father has abandoned Lana. Abandonment focuses on the parent's conduct. A lack of interest in the child is not the sole criterion in determining abandonment. "Section [17a-112(j)(3)(A)] does not contemplate a sporadic showing of the indicia of interest, concern or responsibility for the welfare of a child. A parent must maintain a reasonable degree of interest in the welfare of his or her child. Maintain implies a continuing, reasonable degree of concern." In re Deana E., 61 Conn.App. 185, 193, 763 A.2d 37 (2000).
The court finds Father has not (i) provided financial support to Lana since July 2006; (ii) sent any cards, gifts or letters to Lana while she has been placed with the foster family; (iii) acknowledged her birthday or other special days; and (iv) inquired as to her health and wellbeing while she has been placed with the foster family. Despite the Department offering visitation services, he has not engaged in visitation approved and sanctioned by the Department since May 2007 — the extent of his contact with Lana during the time she was reunified with Mother is unknown. The credible evidence shows that his concern for the child has been expressed minimally and sporadically at best. The evidence is clear and convincing that Father has abandoned Lana within the meaning of the statute.
C. Termination of Parental Rights on Ground B(i):
The petitioner alleges that respondent Mother's and Father's parental rights to Lana should be termninated because each such respondent has failed to achieve rehabilitation within the meaning of C.G.S. § 17a-112(j)(3)(B).
On February 20, 2007 Lana was adjudicated neglected and committed to DCF. Thus, the critical issue for this court is whether Mother and Father have achieved a sufficient degree of rehabilitation as would allow the court to find that they, individually and respectively, would be able to care for Lana within a reasonable time considering the age and needs of the child.
"Personal rehabilitation as used in [Section 17a-112] refers to the restoration of a parent to his or her former constructive and useful role as a parent . . . [The statute] requires the trial court to analyze the [parent's] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time . . . [The statute] requires the court to find, by clear and convincing evidence, that the level of rehabilitation [she] has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date [she] can assume a responsible position in her child's life." In re Amneris P., 66 Conn.App. 377, 384-85 (2001) quoting from In re Eden F., 250 Conn. 674, 706, 741 A.2d 873 (1999). In assessing rehabilitation, the critical issue is not whether the parent has improved her ability to manage her own life, but rather whether she has gained the ability to care for the particular needs of the child at issue. In re Amneris P., supra, 385. "Terminating a parent's rights is not ordered to punish a parent who has not tried to rehabilitate; it is ordered so as not to punish a child by denying her a safe, permanent home with proven competent care-takers because her biological mother has tried hard but continues to be incapable of providing such a home for her." In re Samantha B., 45 Conn.Supp. 468, 477, 722 A.2d 300 (1997), aff'd, 51 Conn.App. 376, 721 A.2d 1255 (1998).
In assessing rehabilitative progress, the question is not simply how far the parent has come, but have they come far enough to encourage the belief that within a reasonable period of time, the parent can assume his role as parent in the life of the child. In re Stanley D., 61 Conn.App. 224, 230. See also In re Sheila J., 62 Conn.App. 470, 479-80 (2001). "What constitutes a reasonable time is a factual determination that must be made on a case-by-case basis." In re Stanley D., supra, 231 (quoting In re Michael L., 56 Conn.App. 688, 694 (2000)). Further, the court may, in considering the issue of whether the degree of rehabilitation is sufficient to foresee that the parent may assume or resume within a reasonable time a useful role in the child's life, rely on events occurring after the date of the filing of the termination of parental rights petition. In re Stanley D., supra, 230. Additionally, the court, in assessing the ability of the respondent parent may make inquiry into the full history of the respondent's parenting abilities. See, In re Galen F., 54 Conn.App. 590, 594, 737 A.2d 499 (1999).
Mother: With the above standards as the court's parameters, the court finds by clear and convincing evidence that Mother has failed to achieve such a degree of rehabilitation so as to encourage the belief that within a reasonable period of time, she could resume her role as a parent for Lana. At the time of the neglect adjudication, Mother's presenting problems arose from her mental health needs, domestic violence, substance abuse as well as her failure to protect Lana from physical abuse.
Mother, in contesting the termination, presented evidence of the compliance with the specific steps. The parent's compliance with court-ordered expectations or specific steps entered at the time of the neglect adjudication is relevant, but not dispositive to the rehabilitation finding. In re Luis C., 210 Conn. 157, 554 A.2d 722 (1989).
Notwithstanding Mother's assertions to the contrary to DCF, her service providers and evaluators, the court finds it be simply incredible that Mother was not having frequent contact with Father during the spring of 2007 and, in all likelihood, throughout the summer and early fall of 2007 while Lana was living with Mother under commitment. Father was arrested while driving Mother's car on April 19, 2007 and again on May 12, 2007. On May 3, 2007, the police, responding to a caller having reported hearing a woman being assaulted on the second floor at Mother's address (Mother lives on the second floor), found Father lying in Mother's bed; Mother denied to the police that she had been assaulted and insisted that nothing was wrong. Father was also found by the police to be on the third floor landing of the common stairway of Mother's apartment a few minutes before 7:00 am on Sunday morning, October 14, 2007. Father was wrapped in a blanket and items of his clothing were found in Mother's bedroom. Father was asked to leave and he did so with Mother's cousin. Later, at 1:20 pm on the same day, Father was arrested for possession of marijuana while driving Mother's car. The address given by Father, on two of the three arrests set forth above (including the October 14, 2007 arrest) was the same as Mother's.
Exhibit 17, Mother reported it had been "a long time" since she had seen Father; Exhibit H, evaluation conducted 11/21/06 and 12/07/06 by Elaine L. Ducharme, Ph.D, page 13 "[s] is able to recognize that she was verbally and physically abused by Lana's father and she has severed all ties with him" (emphasis added); see also Exhibit 5, page 11, summary of reports by Mother denying contact and involvement with Father. Yet, contrary to her statements of no contact with Father, Mother subsequently reported to Dr. Mantell, she was aware of Father having arrived early for a "supervised visit" on the morning of 10/14/07 and she made him wait on the porch (Exhibit K., page 8).
In apparent explanation of the Father being found in Mother's car, MGF testified that Mother owned an Infiniti and the key was stuck in the ignition. The court notes, however, that the police reports of the April 19, 2007 and the May 12, 2007 (exhibits 8 and 9, respectively) indicate that Father was stopped while driving a green Pontiac. The police report of the October 14, 2007 stop and arrest (exhibit 12) indicates Father was driving a 1999 Grey Infiniti. There was no testimony that the key was stuck in the ignition of the green Pontiac. Further, the court cannot reasonably infer that Father (i) managed to take Mother's car on such occasions without her knowledge and (ii) drove Mother's Pontiac only 2 times and the Infiniti 1 time and happened to be arrested on each such occasion — the odds of that happening can only be assumed to be infinitesimal.
F.T.R October 23, 2008 @11:51:00 testimony of Maternal Grandfather.
When the court considers all of the incidents set forth above, it is clear Mother was aware of, and allowed, Father to not only drive her motor vehicles but also to come to her house. Mother failed to advise DCF of any of the above occurrences and the Department did not learn of the same until November 7, 2007.
The court, due to Mother's conscious decision to mislead her evaluators as to her contact with Father and other matters, discounts the conclusions of Dr. Mantell and Dr. Ducharme. The court concurs with the prescient statement of Dr. Humphrey that Mother's reports "fell short . . . of confident assurance that the relationship [with Father] was ended." (Exhibit 10, page 17.) Based on his concerns, Dr. Humphrey opined that " sustained evidence of altering behaviors such as criminal conduct, drug abuse, involvement in domestic violence and self-destructive conduct" would be, due to Lana's age and the seriousness of the abuse she suffered, be required before one could assume that Lana could be safely returned to Mother's care. (Exhibit 10, page 19, emphasis in original.) Dr. Humphrey did not recommend that reunification efforts begin until Mother altered her behaviors for at least one full year. He acknowledged the delay in reunification necessitated by allowing Mother the time to demonstrate that she had truly altered her past problematic behaviors would pose a risk with attachment for Lana; accordingly, Dr. Humphrey recommended a permanency plan other than reunification with Mother.
E.g., see Exhibit 5, K, page 5 wherein Dr. Mantell reports that Mother said she wasn't trying to kill herself and that she didn't want to die during her 2 "incidents" vs. the report to Dr. Humphrey, Exhibit 19, page 7 wherein Mother affirmed that her intention was to kill herself.
DCF in less than the recommended one-year period reunited Lana, under commitment, with Mother. Lana was again removed from Mother's care within a few months after such placement as a result of the incident on October 14, 2007 — on October 14, 2007, at a few minutes before 7:00 a.m., DCF accompanied by the police, made an unannounced visit to Mother's apartment. Upon entering Mother's apartment (after a delay of several minutes before Mother would open the door to the police), the police (i) observed the kitchen of the apartment to be reeking of the smell of marijuana, (ii) found Mother's cousin, a convicted felon, in the apartment and (iii) as referenced above, located Father in the hallway outside of the apartment. Dr. Humphrey was thusly proven right and Lana has suffered as a result of the two removals occurring within her short life. (Exhibit 20, page 3.) After the second removal, Mother would not submit to a hair test and by her failure to do so, she was unable to demonstrate that she benefited from the substance abuse services undertaken. The credible evidence at the trial from the Casey Family Services and DCF workers was that Mother had been told that she was not to allow Lana to have contact with any person other than those approved by DCF, Father was not to visit with Lana other than in a DCF supervised setting, and if Father did make contact with Mother, Mother was to immediately notify DCF; Mother chose to ignore such directives. The credible testimony from the DCF case worker was that Mother, on October 15, 2007, admitted that she had "messed up" and that responsibility for Lana's removal rested with Mother.
Mother has not been able to demonstrate sustained behavioral changes that would allow any degree of confidence that she would be able to keep Lana safe and secure. She failed to recognize the danger that Father and perhaps others, such as Mother's cousin, would pose to her own and Lana's well-being; in so doing she failed at one of the most fundamental obligations of a parent — that of assuring the safety and protection of her child. As Dr. Humphrey testified, rehabilitation has a context and must take into consideration the age and needs of the child. The linchpin to a determination of rehabilitation necessarily includes a finding that the parent can begin or resume parenting within a reasonable period of time. The question is not simply one of rehabilitation; it is whether the particular needs of the child can be met within a reasonable timeframe. See, In re Amneris P., supra. Taking into considerations the findings made above together with the age of the child, her time spent in the care of the Department and her need to be raised in a home where she will be protected and free from violence and abuse, the court concludes, by clear and convincing evidence, Mother has failed to rehabilitate to a degree as to allow for any reasonable assurance that the child could safely be returned to her care.
The court finds by clear and convincing evidence, the petitioner has met her burden and, Ground B(i), the "failure to rehabilitate" ground for termination of Mother's parental rights to Lana, is proven by clear and convincing evidence.
Father: Applying the standards set forth above, the court finds by clear and convincing evidence that Father has failed to achieve such a degree of rehabilitation so as to encourage the belief that within a reasonable period of time, he could assume a role as a parent for Lana. At the time of the neglect adjudication the presenting problems for Father included the severe physical abuse suffered by Lana, his history of domestic violence and criminal behavior, and his failure to be able to provide a safe and nurturing home for Lana.
Father for only a short time managed to find the time and put forth the effort to engage in services recommended to address his presenting problems. He did not complete the substance abuse program or the DOVE program to address his proclivity to engage in domestic violence. There is no evidence as to what, if any, rehabilitative progress he may have made. There is no evidence that he is able to maintain adequate housing or any form of legal income. He clearly is unable to refrain from involvement with the criminal justice system as evidenced by his arrests which occurred after the date of the neglect adjudication. He has never visited with any consistency. He has not seen fit to advise DCF of his whereabouts.
The evidence is clear and convincing that Father has made no effort to remain in contact with DCF, avail himself of services or change his life in any meaningful way to accommodate Lana. The evidence is clear and convincing that Father has demonstrated no ability to rehabilitate himself so as to allow any belief that he could, in any reasonable time, resume his role as a parent for Lana. For all of the reasons stated above, Ground B(i), the "failure to rehabilitate" ground, for termination of Father's parental rights is proven.
D. Termination of Parental Rights on Ground C.
General Statutes § 17a-112(j)(3)(C) authorizes the termination of parental rights where "the child has been denied, by reason of an act or acts of parental commission or omission, including, but not limited to, . . . severe physical abuse or a pattern of abuse, the care, guidance or control necessary for the child's physical, educational, moral or emotional well-being, except that nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights." This provision authorizes termination when "specific acts of parental commission or omission" have caused physical or emotional injury to the child. (Internal quotation marks omitted). See In re Felicia D., 35 Conn.App. 490, 502, 646 A.2d 862, 5, cert. denied, 231 Conn. 931, 649 A.2d 253, (1994).
"There is no requirement in § 17a-112 that there must be a finding of immediate physical danger to the child before parental rights can be terminated." In re Joshua Z., 26 Conn.App. 58, 62, 597 A.2d 842, cert. denied, 221 Conn. 901, 600 A.2d 1028 (1991). The court must determine whether the requisite injury has befallen the child as a result of actual acts of commission or omission by the parents. In re Kezia M., 33 Conn.App. 12, 0 (1993). Direct evidence of causing the injury is not required . . . circumstantial is sufficient. In re Cheyenne A., 59 Conn.App. 151, 158-59, 756 A.2d 303 (2000).
In finding parental acts of commission or omission, the courts have given careful consideration of the circumstances of each individual case. See In re Sean H., 24 Conn.App. 135, 144-45, 586 A.2d 1171, cert. denied, 218 Conn. 904, 588 A.2d 1078 (1991). Consider, In re Sheena I., 63 Conn.App. 713, 723, 778 A.2d 997 (2001) (parent absent from home for long periods, had knowledge of neglect and abuse inflicted on children by other parent, and failed to take steps to protect children from such abuse); In re Tabitha T., 51 Conn.App. 595, 603, 722 A.2d 1232 (1999) (parent failed to protect children in her care from sexual abuse by their older siblings; parent instructed child not to disclose to therapist anything about sexual abuse or any other goings on of the family); In re Lauren R., 49 Conn.App. 763, 772, 715 A.2d 822 (1998) (parent failed to believe child's account of abuse or perpetrator's admission of abuse, failed to protect child from further abuse, failed to avail herself of reunification services, and failed to cooperate with police and department to ensure child's protection); In re Mark C., 28 Conn.App. 247, 254-55, 610 A.2d 181, cert. denied, 223 Conn. 922, 614 A.2d 823 (1992) (father committed all acts of physical and sexual abuse; while mother may have been victimized by her abusive husband, she was not relieved of her responsibilities to her children; father would pose a threat to the children upon his release from incarceration if they were returned to mother); and In re Nelmarie O., 97 Conn.App. 624, 905 A.2d 706 (2006) (mother and father abused one child, but not two others; by such acts of commission as to the one child parents failed to provide the other children with a safe home and environment free from violence).
DCF alleges Lana has been denied, by reason of an act or acts of parental commission or omission including severe physical abuse or a pattern of abuse, the care, guidance or control necessary for her child's physical, educational, moral or emotional well-being. DCF also argued that the unexplained and clearly non-accidental severe injuries inflicted on Lana — which the court found occurred on at least one or more occasions — constitute prima facie evidence sufficient to support termination of the respondents' parental rights.
The court found above the child has been exposed to non-accidental and inadequately explained serious physical injury. The respondents' statements to the police at the time of the initial inquiry (see Exhibits 15 and 16) reflect that each denied hurting Lana and a disbelief that the other parent could be responsible. The statements also confirm Mother as the primary caretaker of Lana; Mother, when not physically present when anyone else was attending to Lana, had a baby monitor on. Dr. Asnes' credible testimony was that the injuries inflicted on Lana would have caused her pain and to cry. Many of the serious injuries having been inflicted days if not weeks before Lana was taken to CCMC went unaddressed by the respondents. Each of the parents has, at a minimum, failed to protect the child and at worse inflicted severe and life threatening on her. The court finds by clear and convincing evidence the Petitioner has satisfied her burden and that the respondent Mother and Father, by acts of omission or commission, denied Lana the care, guidance or control necessary for her physical well-being.
To conclude, the petitioner has established, by clear and convincing evidence, that one or more statutory grounds exist for the termination of Mother's and Father's parental rights to Lana. Having so determined, the court must next consider whether clear and convincing evidence has been presented that it is in the best interests of the child that the parental rights of the respondents to Lana be terminated.
III DISPOSITION
During the dispositional phase, the trial court must determine whether termination is in the best interests of the child. In re Quanitra M., 60 Conn.App. 96, 103, 758 A.2d 863, cert. den. 255 Conn. 903, 762 A.2d 909 (2000). "In arriving at that decision, the court is mandated to consider and make written findings regarding seven factors delineated in General Statutes [17a-112(k)]." In re Jonathon G., 63 Conn.App. 516, 528 (2001) (quoting In re Denzel A., 53 Conn.App. 827, 833 (1999)). The court considers each of them in determining whether to terminate parental rights under this section. The court makes the following seven written findings:
(1) As to the timeliness, nature and extent of services offered, provided and made available to the parents and the children by an agency to facilitate the reunion of the children with respondents: the court, in reliance of the finds made above, finds DCF offered timely and appropriate services to Lana, Mother and Father.
(2) As to whether DCF has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended. The court finds that DCF made such efforts as to Mother — witness in particular the reunification of Lana with her Mother. The Mother's actions and omissions are responsible for failure of the reunification efforts. The court further finds DCF made reasonable efforts to reunite Father.
(3) As to 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, the court finds specific steps were ordered as to respondent Mother and Father. As set forth above, Mother complied with steps by attending and participating in services. Father did not comply with the steps as he chose not to avail himself of services. DCF complied with such steps.
(4) As to the feelings and emotional ties of the children with respect to the children's parents, any guardian of such children's person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties. The court finds that Mother does love her child and would like to be, once again, reunified with Lana. No evidence was presented of there being any relationship or bond between Lana and Father. MGF intervened in the case and was at one time seeking a transfer of guardianship. He withdrew the Motion seeking such a transfer but remains as a visiting resource to Lana and clearly as a support to Mother.
The court finds that the child does have positive feelings and emotional ties to Mother. The credible evidence supports a further finding that Lana has suffered as a result of the two removals from Mother's care. The removals have caused Lana some difficulty in forming secure attachments as evidenced by some of her behavioral difficulties. The evidence is that Lana and the foster family have been addressing such difficulties in an appropriate manner and Lana has, despite the experienced disruptions, developed an attachment to the foster family and that she is bonded to them. She has been placed with them for most of her life and looks to them to meet her needs.
(5) As to the age of the child: Lana is a bit over two and one-half years old.
(6) As to the efforts the parents have made to adjust such parent's circumstances, conduct, or conditions to make it in the best interest of the children to return such children home in the foreseeable future, including, but not limited to, (A) the extent to which the parents have maintained contact with the children as part of an effort to reunite the children 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 children; the court finds as follows: Mother has attended recommended services and has maintained contact with Lana. She has maintained contact with the Department in her efforts to facilitate reunification. The court finds, however, that the contacts she maintained with the Department prior to her reunification with Lana and while Lana was returned to her care were not forthright. Accordingly, while Mother made efforts to adjust her circumstances, the court finds that she has not adjusted her behavior to make it in the best interest of Lana that she be returned home in the foreseeable future. Father, in the beginning of the case, made minimal efforts to adjust his circumstances and since May 2007 has made no efforts to do so. Giving Mother or Father additional time would not likely bring their performance as a parent to an acceptable level.
(7) As to the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent, the court finds no unreasonable conduct by the child protection agency, foster parent(s) or third parties nor does the court find economic circumstances of the respondents preventing a meaningful relationship with Lana.
Lana is in need of permanency, stability and nurturance. She needs to be in a home where she will be protected from physical abuse.
With respect to the best interests of the child contemplated by C.G.S. § 17a-112(j)(2), by clear and convincing evidence, and based upon all of the foregoing, the court finds termination of the parental rights of the respondent Mother and Father to Lana is in the best interest of the child.
V REVIEW OF PERMANENCY PLANS
The Department further seeks to have the court approve the permanency plan of termination of parental rights and adoption filed on April 11, 2008. Mother filed on May 9, 2008 an objection to the earlier filed plan.
General Statutes § 46b-129(k)(1) provides in pertinent part: "Nine months after placement of the child or youth in the care and custody of the commissioner . . . or removal of the child . . . pursuant to section 17a-101g or an order issued by a court of competent jurisdiction, whichever is earlier, the commissioner shall file a motion for review of a permanency plan." The court is required to hold a permanency hearing even absent an objection. The department has the burden of proving that the proposed permanency plan is in the best interests of the child. General Statutes § 46b-129(k)(1). At a permanency hearing held in accordance with this provision, the court shall approve a permanency plan that "is in the best interests of the child . . . and takes into consideration the child's . . . need for permanency. The child's . . . health and safety shall be of paramount concern in formulating such plan." General Statutes § 46b-129(k)(2). Having considered the evidence presented at the consolidated permanency plan hearing and the termination of parental rights trial, the court hereby finds by a preponderance of the evidence the plan for termination parental rights and adoption is in the best interests of the child.
The court hereby approves the plan filed on April 11, 2008. The respondent Mother's objection is overruled.
The court further finds DCF has made reasonable efforts to achieve the plan.
IV ORDERS
It is accordingly, ORDERED that the parental rights of Mother to Lana are hereby terminated.
It is further, ORDERED, that the parental rights of Father to Lana are hereby terminated.
The Commissioner of the Department of Children and Families is hereby appointed the statutory parent for this child.
The Commissioner will file, within 30 days hereof, a report as to the status of this child as required by statute and such further reports shall be timely presented to the court as required by law.
The Clerk of the Probate Court with jurisdiction over any subsequent adoption of this child shall notify in writing the Deputy Chief Clerk of the Superior Court for Juvenile Matters at New Britain of the date when any adoption is finalized.
Judgment may enter accordingly.
It is so ordered this 5th day of November 2008.