Opinion
No. T11-CP05-012200-A
April 27, 2006
MEMORANDUM OF DECISION
On January 21, 2004, Logan S.'s biological mother, Karen D., filed a petition to terminate the parental rights of John S. to their son, Logan S. pursuant to C.G.S. § 45a-715 et seq., in Probate Court in Ellington, CT. The petition was amended January 24, 2006. The grounds alleged against respondent father in the termination of parental rights petition, as amended, were: (1) abandonment; (2) that the child was denied the care, guidance, or control necessary for the child's physical, educational, moral or emotional well-being, by reason of acts of parental commission or omission; and (3) no ongoing parent-child relationship. On September 16, 2004, the Probate Court entered an order terminating the parental rights of John S. Respondent father appealed from that decision and the matter was transferred to the Superior Court for Juvenile Matters at Rockville. The matter was then transferred from juvenile court in Rockville to the Child Protection Session in Middletown for trial de novo. C.G.S. § 45a-186(a). Respondent father contests termination of his parental rights and trial was held on April 18, 2006.
The court notes that the child was represented through trial by his attorney. The court finds that notice of this proceeding has been provided in accordance with the provisions of the Practice Book and that the Child Protection Session of the Superior Court, Juvenile Matters division, has jurisdiction over the pending matter. No action is pending in any other court affecting custody of the child.
I. FACTS
The Court makes the following findings, having considered the petition, the probate study for termination of parental rights, (Ex. 1), the criminal record of John S., a letter from Crossroads Community Church, and the testimony of Anna Jastrzebski, Department of Children and Families ("DCF") social worker, Kevin Conter, Ph.D., and respondent father. The Court finds that the following facts were established by clear and convincing evidence:
The child Logan was born on September 3, 1994. Mother and father were not married at the time, but had an "on and off" relationship for approximately six years and lived together at times until the child was four or five years old. At that time, father became addicted to crack cocaine and had serious alcohol addiction problems as well. Father has a significant history of alcohol and substance abuse addiction with which he has struggled for many years. He has been unable to remain in the community and has relapsed when released from incarceration.
Respondent father has a criminal history including convictions for escape in the first degree, burglary in the second degree (four counts), burglary in the third degree, probation violation, use of a motor vehicle without permission, interfering/resisting, breach of peace (five counts) and disorderly conduct. Father testified that he also had several convictions for driving while under the influence, although they do not appear on father's Connecticut criminal record. As a result of his convictions, father was in and out of incarceration beginning in the late 1990s and almost continuously since October 2000. While incarcerated, father has not seen Logan. Most recently, father was released from incarceration on April 11, 2006, immediately relapsed with alcohol use, and at the time of trial on April 18, 2006 was again incarcerated.
Father does not have an ongoing relationship with Logan. At father's request, a psychological evaluation was ordered in 2005, but father then chose not to participate. He testified that he was advised by other inmates not to attend the evaluation because it would be used against him. Father testified at trial that he told social worker Jastrzebski when she met with him on March 24, 2006 that he would now like to have the evaluation and had not understood that it was necessary in order for him to resume visitation with his son. She advised him to discuss that with his attorney. Father also testified that he had a good relationship with Logan before he was incarcerated and was his T-ball coach and took him to play youth hockey. He testified that his substance abuse problems resulted in his lengthy incarcerations. He stated that in contesting termination of his parental rights, he was not trying to have Logan removed from his home, but only wanted visits with Logan. Father stated that he wanted to be a positive influence on Logan and that he had plans upon release to continue substance abuse treatment and to work as a landscaper. He stated that after his incarceration in October 2000, he wrote to Logan regularly, but stopped writing letters after twenty months, when his substance abuse counselor told him it would be better for him to stop since there was no response. He also stated that he thought he was prohibited from writing to Logan after the probate court terminated father's parental rights. Father stated that he wished to apologize to Logan for the decisions father had made and that it was his fault, not Logan's, that father disappointed Logan. Father stated that the last thing he said to Logan when he saw him in 2001 was that he would be back in ninety days, but admittedly he did not come back.
Logan last saw father at a Christmas visit in December 2001. Mother had sent father the bus ticket to be able to attend the visit. Although mother facilitated visitation with father for a time, mother ultimately stopped. She had concerns about the effect of father's substance abuse on their son and was fearful for her and Logan's safety. Mother's concern stemmed in part from a domestic violence incident when Logan was approximately four or five in which father pushed mother down onto the floor and Logan tried to intervene.
In June 2003, mother married Robert D. who has two sons, Jason who is seventeen and Brandon, who is Logan's age. The two families blended and mother arranged for counseling for Logan to ease the transition to living in a blended family. Robert D. is employed full-time and has an excellent relationship with Logan. Robert D. loves Logan, views him as his own son, and would like to adopt him.
To help him transition into a blended family, Logan was involved in counseling with Dr. Kevin Conter, Ph.D., from August 2003 through February 2004 at which point Dr. Conter determined that Logan no longer needed counseling. Dr. Conter resumed counseling with Logan in February 2005 through the present to assist Logan in issues with his relationship with Brandon. Throughout his counseling with Dr. Conter, Logan remained consistent in his position that he did not wish to see his biological father or have anything to do with him. Logan did not ask to have contact with father, had no attachment to father and no positive memories of father that he chose to speak of, but relayed only negative memories of being disappointed by father. Dr. Conter described Logan as a mature child who did not like to have to keep repeating his position with regard to his biological father. Dr. Conter testified that it would be in the best interest of Logan to terminate parental rights of father so that Logan could be adopted by his stepfather. According to Conter, even though Logan's relationship with stepfather was already very strong, adoption would further solidify the relationship and place Logan on an equal footing with his stepbrothers. He testified that adoption was very important to Logan and would provide permanency for Logan. Because Logan had no relationship with father, Conter believed that it was not in Logan's best interest to allow further time for the establishment of a relationship with biological father.
Father filed a pretrial motion to allow Logan to testify as a child witness. Dr. Conter testified that it was not in Logan's best interest to testify and that Logan would have difficulty handling the courtroom setting. He stated that although Logan could handle a meeting in chambers with the judge, he did not view it as necessary since Logan had consistently stated his position that he wanted nothing to do with his father. The motion was denied.
DCF social worker Jastrzebski also testified that Logan consistently stated his view that he did not wish to have anything to do with father and that he wanted to be adopted by his stepfather. She also testified that Logan was aware of the court proceedings and wanted them to be over.
Logan is eleven years old and has a very strong emotional bond with his mother, stepfather and stepbrothers. He has lived with mother, stepfather and stepbrothers in a stable, nurturing environment since 2003. He is well cared for and is happy and healthy and doing well in therapy with Dr. Conter. Logan is an honor student in school and does not have behavioral problems. He is active in sports, including soccer and baseball, and enjoys other activities such as police explorers and Boy Scouts. Logan has asked to be adopted by stepfather and would like to have the same last name as the rest of the family.
II. ADJUDICATION
Each statutory basis set out in General Statutes Sec. 45a-717(g) is an independent ground for termination. The petitioner is required to prove at least one ground alleged in the petition by clear and convincing evidence. In re Bruce R., 234 Conn. 194, 204, 662 A.2d 107(1995). As to the adjudicatory phase, the court has considered the evidence and testimony related to circumstances and events prior to January 24, 2006, the date on which the petition for termination of parental rights was amended.
A. Abandonment
The Court finds by clear and convincing evidence, that the child Logan has been abandoned by respondent father in the sense that this parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child.
Under the law, "Abandonment occurs where a parent fails to visit a child, does not display love or affection for the child, does not personally interact with the child, and demonstrates no concern for the child's welfare. In re Juvenile Appeal (Docket No. 9489), 183 Conn. 11, 14, 438 A.2d 801 (1981)." In re Kezia M., 33 Conn.App. 12, 18, 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993); In re Terrance C., 58 Conn.App. 389, 394, 755 A.2d 232 (2000). This ground is established when the child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child. Sporadic efforts are insufficient to negate the claim of abandonment. In re Roshawn R., 51 Conn.App. 44, 53, 720 A.2d 1112. Indicia of interest, concern and responsibility include "attempts to achieve contact with a child, telephone calls, the sending of cards and gifts, and financial support." In re Drew R., 47 Conn.App. 124, 129, 702 A.2d 647 (1997). The test for determining abandonment of a child for purposes of termination of parental rights cases is not whether a parent has shown "some interest" in his or her child, but rather, whether the parent has maintained any reasonable degree of interest, concern or responsibility as to the child's welfare. In re Rayna M., 13 Conn.App. 23, 36, 534 A.2d 897 (1987).
The Court finds that father has not had any involvement with his son since a visit in December 2001 for Christmas when Logan was six years old. Father has been incarcerated most of the time since October 2000. Initially, father wrote letters regularly to Logan from the correctional facility, and attempted to have gifts delivered to the child on a few occasions. However, father's efforts do not rise to the level of a reasonable degree of interest, concern or responsibility as to the child's welfare. Whenever father was released from incarceration, he did not take advantage of that opportunity to take steps to reestablish any kind of relationship with Logan or to place himself in a position where visitation would be in the best interest of the child. Instead, father routinely relapsed and engaged in criminal conduct such that he was reincarcerated. His record reflects that he was incarcerated in October 2000, but was not in custody in December 2001 and used a bus ticket purchased by mother to visit Logan. He did not return to visit Logan as promised ninety days later, and was reincarcerated. He was placed in a halfway house in April 2005, but was arrested on escape charges in August 2005. He received an additional one-year sentence for the escape conviction. Even when father took the step of obtaining a court-ordered psychological evaluation, he then failed to participate, thus failing to pursue possible visitation. Therefore, although father desires to have a relationship with Logan, the court finds by clear and convincing evidence that father placed himself in a position in which he failed to maintain a reasonable degree of interest, concern or responsibility for the welfare of this child, and the statutory ground of abandonment is established.
B. No Ongoing Relationship
This ground is established when there is no ongoing parent-child relationship with the parent, which is defined as the relationship that ordinarily develops as a result of a parent having met on a continuing day to day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment of the parent-child relationship would be detrimental to the best interest of the child.
No ongoing parent-child relationship contemplates a situation in which, regardless of fault, a child either has never known their parent, or that no relationship has ever developed between them, or that the child has lost that relationship so that despite its former existence it has now been completely displaced. In re Juvenile Appeal (Anonymous), 181 Conn. 638, 645-46, 436 A.2d 290 (1980). In any case, "the ultimate question is whether the child has no present memories or feelings for the natural parent." In re Juvenile Appeal, (Anonymous), 177 Conn. 648, 670, 420 A.2d 875 (1979). The mere recognition of an individual as a parent will not defeat this ground. In re Juvenile Appeal (84-6), 2 Conn.App. 705, 708-09, 438 A.2d 1101 (1984), cert. denied, 195 Conn. 801, 489 A.2d 564 (1985). The presence or absence of positive feelings on the part of the child is determinative. In re Shane P., 58 Conn.App. 234, 240, 754 A.2d 169 (2000).
In the adjudicatory phase, the petitioner must establish (1) that no ongoing parent-child relationship exists; and (2) that the allowance of further time for the establishment of such a relationship would harm the interests of the child. In re Jonathon G., 63 Conn.App. 516, 525, 777 A.2d 695 (2001).
In this case, the court finds that the child does not have positive feelings toward his father. Throughout the lengthy history of this case, Logan has not expressed a desire to see father or to have anything to do with him. The child has consistently stated this position to the DCF worker and to his therapist, Dr. Conter. Indeed, as both the social worker and the therapist testified, Logan had been disappointed by father and did not wish to see him. As the social worker testified, Logan has not been curious about father or interested in information regarding him. Logan has not expressed a desire to have any contact with father. Although father and Logan had a relationship at one time when Logan was quite young, respondent father's own substance abuse and criminal conduct prevented the relationship from continuing. As set forth above, each time father was released from incarceration, he was rearrested.
John S. has not had contact of any kind with Logan since December 2001. Once it became clear to John S. that there would be no response to his letters, he could have pursued his visitation rights which he failed to do. He also failed to participate in the psychological evaluation even though it was ordered at his request. Even if the Court credits the respondent's testimony that he thought contact of any kind was prohibited after the TPR petition was granted in probate court, he could have sought to renew contact with Logan through the court. He failed to do so.
"[I]n considering whether an ongoing parent-child relationship exists, the feelings of the child are of paramount importance . . . The ultimate question is whether the child has no present memories or feelings for the natural parent. (citations omitted; internal quotation marks omitted) In re Tabitha T., 51 Conn.App. 595, 602, 722 A.2d 1232 (1999)." In re Shane P., 58 Conn.App. at 240. See also In re Amelia W., 62 Conn.App. 500, 507, 722 A.2d 619 (2001). "[F]eelings for the natural parent connotes feelings of a positive nature only." In re Jonathon G., 63 Conn.App. at 525. Here, like the circumstances presented in In re Amelia W., the child does have memories and feelings about his father, but those feelings are negative feelings and feelings of disappointment. Here, "no positive emotional aspects of the relationship survived," and, therefore, there is no ongoing parent-child relationship. In re Amelia W., 62 Conn.App. at 507. Thus, giving great weight to the clear absence of positive feelings on the part of the child, the court finds that this ground has been proven by clear and convincing evidence.
The court also finds by clear and convincing evidence that it would not be in the child's best interest to allow further time to develop the parent-child relationship. This mature eleven-year-old child has clearly and repeatedly expressed that he does not wish to see his father and wants nothing to do with him. Logan has a very strong emotional bond with his mother, stepfather and stepbrothers. In view of the child's need for permanency, and consistent with Dr. Conter's testimony, the court finds that to allow additional time would be detrimental to Logan's best interests.
Because the court finds that the grounds of abandonment and no ongoing parent-child relationship have been established, the court need not reach the other ground alleged in the petition.
III. DISPOSITION
As to the dispositional phase of this hearing on the petition for termination of parental rights, the court has considered the evidence and testimony related to circumstances and events up to and including April 18, 2006, the date upon which the evidence in this matter was completed.
With respect to the six written factual findings required by General Statutes § 45a-717(h), each of which the court has considered in determining whether to terminate parental rights under this section, the court now records the following findings:
(1) As to the timeliness, nature and extent of services offered, the court finds that a psychological evaluation was ordered and father chose not to participate. DCF prepared a study and an addendum at the request of the court concerning the petition. The addendum to the TPR study recommended termination of father's parental rights. Ex 1.
(2) As to the extent to which all parties have fulfilled their obligations under the terms of any applicable court order, no specific steps were issued as to John S.
(3) As to 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, the court finds that the child has strong emotional ties to his mother, stepfather and stepbrothers. Logan has no emotional bond with biological father, whom he has not seen in approximately four and a half years.
(4) As to the age of the child, the court finds that Logan was born on September 3, 1994 and is now eleven years of age.
(5) As to 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, the court finds that respondent father has not maintained any contact with the child. The court further finds that John S. has not made realistic and sustained efforts to conform his circumstances, conduct or conditions to even minimally acceptable parental standards. When father was not incarcerated, he did not take advantage of the opportunity to seek contact with Logan or to place himself in a position such that contact would be in Logan's best interest. Instead he relapsed, engaged in criminal conduct and was reincarcerated. As recently as April 2006, father was released from incarceration, immediately relapsed, and was incarcerated within one week of his release. Father did attempt to maintain communication initially by writing letters. However, he did not pursue any avenues to resume contact with Logan when he had the opportunity. The court finds that giving him additional time would not likely bring his performance, as a parent, within acceptable standards sufficient to make it in the best interest of the child to be reunited with him in the foreseeable future.
(6) 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 that no unreasonable conduct by the mother or third parties is noted. The court finds that although mother did not respond to father's letters regarding Logan, and moved without informing paternal relatives of her location, mother's actions were not unreasonable under the circumstances where father's crack and alcohol addiction placed her in fear for herself and her son. Moreover, mother's conduct occurred after she had attempted to facilitate visitation and provided father with financial assistance, with no change in father's criminal conduct or substance abuse issues. The court finds that respondent's own conduct is the principal reason he has no relationship with his son. Further, while respondent's economic means may have been limited, economic factors did not prevent regular, continuing contact with the child.
With respect to the best interest of the child contemplated by General Statutes § 45a-717(g), by clear and convincing evidence, and based upon all of the foregoing, the court finds that termination of the parental rights of John S. to Logan S. is in the best interest of the child. Father has not seen Logan since December 2001. As father himself acknowledged, the breakdown in the relationship was not Logan's fault, but occurred as a result of decisions father made and father's own actions concerning substance abuse and criminal conduct. Logan has thrived in the care of his mother and stepfather. He is fortunate to have a stable, loving, nurturing home with a stepfather who wishes to adopt him. Logan does not wish to have any contact whatsoever with father, but wishes to be adopted by Robert D. The DCF study recommends termination and the attorney for the child supports termination.
Therefore, based upon the totality of the testimony and evidence, it is in the best interest of Logan to terminate the parental rights of John S. at this time.
It is accordingly ORDERED that the parental rights of John S. are hereby terminated as to the child, Logan S.
It is So Ordered.