Opinion
November 8, 2004
MEMORANDUM OF DECISION
STATEMENT OF THE CASE
This case involves petitions to terminate the parental rights of Maria Martha V. (D.O.B. 11/20/87), Marisela V. (D.O.B. 10/5/90), and Araceli V. (D.O.B. 10/24/94). On 1/20/04, the Department of Children and Families (DCF or department) filed petitions to terminate the parental rights of the respective biological parents Juana V. (respondent mother), and Martin V. (respondent father). The department alleged the following grounds for termination of the parental rights of the respondent parents: parental failure to rehabilitate, and acts of commission or omission. C.G.S. § 17a-112(j).
On 2/3/04, the parents were served in-hand with the termination petitions. They were appointed counsel. The case was tried to the court on 5/12/04, 5/14/04, 9/16/04, and 10/8/04. Through their attorneys, the respondents contested the petition. All counsel participated in the examination of witnesses. The petitioner called the following witnesses: Betsy Dellacruz (DCF social worker), Shirley DeFlaviis (DCF social worker supervisor), Maria Cruz (DCF social worker), Ines Schroeder (psychologist), Maria Isabella Perez (Institute for Hispanic Families), Cassandra Colon (Interval House), Lisa Murphy (clinical child interviewer supervisor), Ellen Hernandez (psychologist — Voices, Inc.), James Pollard (Department of Correction), and Donna Hoffman (DOC). The mother called the following witnesses: Gladys Soto-Carrion, sexual assault counselor at the YWCA, and Attorney Gary Woodfield, GAL. The respondents did not testify. Numerous exhibits were admitted into evidence. The court took judicial notice of certain documents in the file.
"Exhibits are admissible in their entirely unless exclusion or excision of irrelevant or prejudicial portions is stated in the offer or requested by the objector. Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 348-49, 398 A.2d 1180 (1978); See also State v. Albin, 178 Conn. 549, 553, 424 A.2d 259 (1979); State v. Mortoro, 160 Conn. 378, 390, 279 A.2d 546 (1971)." Tait's Handbook of Connecticut Evidence § 1.29.3, 3rd ed. 2001; "An exhibit offered and admitted as a full exhibit is in the case for all purposes. Merrill Lynch, Pierce, Fenner Smith, Inc. v. Cole, 189 Conn. 518, 525, 457 A.2d 656, 660 (1983) . . . Full exhibits, then, are evidence . . ." Faulkner Graves, Connecticut Trial Evidence Notebook § E-21, 2nd ed. 2000-3.
In re Jeisean M., 270 Conn. 382, 402-03 (2004): "A party requesting the court to take judicial notice of a fact shall give timely notice of the request to all other parties. Before the court determines whether to take the requested judicial notice, any party shall have an opportunity to be heard." Conn. Code Evid. § 2-2, "So long as the parties are offered an opportunity to be heard the court may notice any fact concerning the parties and events of the case that is appropriate for judicial notice." State v. Zayas, 195 Conn. 611, 615, 490 A.2d 68 (1985). Trial courts may take judicial notice of facts contained in the court file; Brockett v. Jensen, 154 Conn. 328, 336, 225 A.2d 190 (1966); and may take notice of court files in other actions between the same parties. Carpenter v. Planning Zoning Commission, 176 Conn. 581, 591, 409 A.2d 1029 (1979).";
"The effect of judicial notice is that a proposition is accepted as true without a corresponding offer of proof by the party who ordinarily would have proved it. State v. Zayas, 195 Conn. 611, 614, 490 A.2d 68, 70-71 (1985); State v. Tomanelli, 153 Conn. 365, 369, 216 A.2d 625, 628 (1966). However, judicial notice is not conclusive, and an opposing party is not precluded from disputing the matter to be judicially noticed through an offer of evidence to the contrary: Tomanelli, supra, 153 Conn. 368-69, 216 A.2d 628-29; State v. Marshall, 11 Conn.App. 632, 635, 528 A.2d 1163, 1164-65 (1987)." Faulkner Graves, Connecticut Trial Evidence Notebook § J-7, 2nd ed. 2000-3.
ISSUES
The issue in this case is whether the petitioner has proved, by clear and convincing evidence, that the respondents' parental rights should be terminated. "In order to terminate a parent's parental rights under § 17a-112, the petitioner is required to prove, by clear and convincing evidence, that: (1) the department has made reasonable efforts to reunify the family; General Statutes § 17a-112(j)(1); (2) termination is in the best intetest of the child; General Statutes § 17a-112(j)(2); and (3) there exists any one of the seven grounds for termination delineated in § 17a-112(j)(3)." In re Samantha C., 268 Conn. 614, 628, 847 A.2d 883 (2004). "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" the seven statutorily-enumerated criteria. C.G.S. § 17a-112(k).
In re Sheena I., 63 Conn.App. 713, 720-21, 778 A.2d 997 (2001) (Citations omitted; internal quotation marks omitted.): "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 . . . 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 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 parents' parental rights is not in the best interests of the child. In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in General Statutes . . . § 17a-112(e)."
In determining whether the petitioner has established the grounds for termination, the court's function as the fact finder "is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Internal citation omitted.) In re Christine F., 6 Conn.App. 360, 366, 505 A.2d 734 (1986). "The burden of persuasion, therefore, in those cases requiring a showing of clear and convincing proof is sustained if 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." Dacey v. Connecticut Bar Assn., 170 Conn. 520, 537, 368 A.2d 125 (1976). "The same evidence certainly can establish more than one ground for termination." (Internal citation omitted.) In re Kezia M., 33 Conn.App. 12, 16, 632 A.2d 1122 (1993). The court may consider both direct and circumstantial evidence. In re Juvenile Appeal (85-2), 3 Conn.App. 184, 193, 485 A.2d 1362 (1985); In re Cheyenne XXX, 59 Conn.App. 151, 158-59, 756 A.2d 303 (2000).
"It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony." In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000). "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." (Internal citation omitted.) In re Carissa K., 55 Conn.App. 768, 782, 740 A.2d 896 (1999). "Although expert testimony may be accorded great weight when it is offered, there is no requirement for expert testimony in termination of parental rights cases." (Internal citation omitted) In re Jeisean M., 270 Conn. 382, 400, 852 A.2d 643 (2004)
The court finds that it has proper jurisdiction of the matter, notice of the proceeding was provided, and no action is pending in any other court affecting the custody of the child. After considering the petition, evidence, and statutory considerations, the court finds in favor of the petitioner and hereby terminates the parental rights of the respondent parents.
FINDINGS OF FACT
The following facts and procedural history are relevant to this decision. The facts were proved by clear and convincing evidence at trial. The child, Maria Martha V., was born on 11/20/87. The child, Marisela V., was born on 10/5/90. The child, Araceli V., was born on 10/24/94. On 11/8/02, the court granted orders of temporary custody, which were sustained on 11/5/02. By agreement, on 1/21/03, the children were adjudicated neglected (conditions injurious), and they were committed to the care and custody of DCF. On 11/12/03, the court maintained the children's commitment. On 11/15/02 and 1/21/03, the respondent mother was ordered to comply with specific steps including participate in individual and family counseling and make progress toward the identified treatment goals, obtain and/or cooperate with a restraining/protective order and/or other appropriate safety plan as approved by DCF to avoid further domestic violence incidents, secure and maintain adequate housing and legal income, visit the child as often as DCF permits, and demonstrate appropriate parent-child interaction during visitation. On 11/15/02 and 1/21/03, the respondent father was ordered to comply with specific steps including participate in individual and family counseling and make progress toward the identified treatment goals, obtain and/or cooperate with a restraining/protective order and/or other appropriate safety plan as approved by DCF to avoid further domestic violence incidents, secure and maintain adequate housing and legal income, no substance abuse, no involvement/further involvement with the criminal justice system, visit the child as often as DCF permits, and demonstrate appropriate parent-child interaction during visitation.
The petitioner called several witnesses to testify at trial.
Betsey Dellacruz
After the mother's case was opened on 3/1/02, DCF worked with the family to address domestic violence and substance abuse issues including providing services through the Institute for Hispanic Families and Interval House. Betsey Dellacruz, DCF social worker, was first assigned to the case on 9/17/02.
On 11/6/02, the school reported possible physical abuse of the mother and children, which was later substantiated. When the mother refused to go to a domestic violence shelter with the children, the department invoked a 96-hour hold. On 11/8/02, an OTC was granted and later sustained (11/15/02). The children were all placed in the same foster home on 11/8/02.
The parents were provided with services to facilitate reunification. The mother was provided domestic violence services through Interval House and the Institute for Hispanic Families. She admitted to the department that the father hit her when he was drinking. The father was provided substance abuse, anger management, and parenting services. The parties were allowed weekly-supervised visitation with all three children.
While transporting the children to the first visit on 11/13/02, the worker was told by Araceli V. that when the father was hitting the mother they were made to watch, and they would not be allowed to cry, or they would be hit. During one of the initial visits, Ms. Dellacruz became concerned regarding the father's behavior. The father was having Maria Martha V. sit on his lap, and he was trying repeatedly to kiss her. Maria Martha V. attempted to avoid his kisses. She looked uncomfortable during the visit. Later, Ms. Dellacruz spoke to the father about her concerns, and he stopped. The worker also noted that Maria Martha V. appeared fearful about seeing her father.
On 12/10/02, the girls told her that they didn't want to see their father anymore. After speaking further with the girls, Maricela V. confirmed that she didn't want to see her father, and Maria Martha V. indicated that she only wanted to visit with her father if DCF was there.
On 1/21/03, the children were committed to DCF. Ms. Dellacruz reported that from 10/02 through 1/21/03, the parents were complying with services, but they had not yet completed the programs. The mother was attending domestic violence sessions at the Interval House, and individual therapy at the Institute for Hispanic Families. The father was attending substance abuse sessions at the Institute for Hispanic Families. In February 2003, the foster mother contacted the worker and raised concerns that the father was driving by the foster home. The children feared that the father would take them away.
On 2/21/03, the foster mother contacted the worker and asked her to speak to Maria Martha V. The worker came to the foster home and interviewed the children. Maria Martha V. disclosed to the worker that her father had sexually abused her. See State's Exhibit A. The worker also spoke to Maricela V. and Araceli V. who made similar disclosures of sexual abuse by the father. See State's Exhibit A.
As a result of these disclosures, Ms. Dellacruz referred the children to The Aetna Children's Center for an evaluation. During the evaluations, the girls made similar disclosures of sexual abuse by the father. After the evaluation, the department suspended visitation with the parents until the matter could be further investigated. On 3/4/03, the juvenile court suspended the father's visitation. The father was subsequently arrested, and the court ordered him not to have any contact with the children. The mother's visitation was recommenced on 3/14/03. On 3/26/03, the case was transferred to another social worker.
On 4/3/03, after a visit with the mother, the foster mother contacted Ms. Dellacruz to report finding a cell phone, charger, and a letter addressed to Maria Martha V. from her mother. See State's Exhibit B. In the letter, the mother encouraged Maria Martha V. to write to the father in jail.
When Ms. Dellacruz was assigned to the case the parents were complying with the specific steps, but they had not completed the steps. The mother had not secured a residence or a job. Although she was engaged in individual counseling, she still did not recognize the need to protect the children and to develop a safety plan. Before the father was arrested, he was participating in services. His visitation was suspended after the sexual abuse allegations were made.
Lisa Murphy
Lisa Murphy, clinical child interview supervisor at The Aetna Children's Center, interviewed the children. The Aetna Children's Center is a medically-based child abuse evaluation program. The court granted the petitioner's request to have Lisa Murphy qualified as an expert in diagnostic interviewing for child sexual abuse.
Ms. Murphy testified to the interview protocol for children. Before the interview she reviews the intake information with the parties involved in the case. She then meets alone with the child in a room with a 2-way mirror, and she goes through a protocol that is tailored to the child's age. If the child is age six or older, she tells the child whether someone is observing the interview. During the interview, the child is asked non-leading questions. After conducting a diagnostic interview, Ms. Murphy makes recommendations for medical care, mental health treatment, and child protection services.
She interviewed the children on 3/4/03. She met alone with each child while East Hartford Police Officer Rick Soto and Ms. Dellacruz observed through the 2-way mirror.
Maria Martha V. was interviewed first. She was 15 years old. She was straight-forward in answering questions but was somewhat shy and soft spoken. Maria Martha V. disclosed physical and sexual abuse by the father. See State's Exhibit D. She described physical abuse involving her father hitting her with a ruler, a belt and his hands. She also described several specific incidents of sexual abuse by her father. She said that her mother witnessed one of the incidents. She also stated that she saw her father sexually abuse her sister, Maricela V. Ms. Murphy testified regarding indicia of reliability concerning Maria Martha V.'s interview. In her interview, Maria Martha V. provided a detailed, clear and concise account of the abuse including sensory motor detail and detailed verbal interactions. Ms. Murphy concluded that Maria Martha V.'s disclosures of abuse by the father had indicia of reliability.
Maricela V. was interviewed next. She was 12 years old. She appeared to be more shy and soft-spoken but was straightforward in her responses. She disclosed physical and sexual abuse by the father. See State's Exhibit E. She described in detail several incidents of abuse. Maricela V. provided a detailed account of the abuse including corroborating an incident involving Maria Martha V. Ms. Murphy concluded that Maricela V.'s disclosures had indicia of reliability.
Araceli V. was interviewed last. She was 8 years old. She also disclosed physical and sexual abuse by the father. See State's Exhibit F. Her account was similar to her sisters' disclosures. Ms. Murphy concluded that Araceli V.'s disclosures had indicia of reliability including having a sense of time as to when these things happened to her.
The children's disclosures of abuse had many similarities. They said that the sexual abuse would occur after the father sent the mother to prepare food or told her to shower. The father would then tell the child to take off her clothes, then he would take off his clothes and the sexual abuse would occur. All the children disclosed incidents of vaginal penetration by the father as well as other incidents of sexual contact. The children were all very afraid of the father, and they reported that he was driving by the foster home. After the interview, recommendations were made to address the children's medical, mental health, and child protection issues.
As part of the Aetna Children's Center evaluation, the children were also examined by a physician, Dr. Elaine Jordan. See Respondent Father's Exhibits 2, 3, 4. The reports indicate normal genital examinations for all the girls that neither proves or disproves sexual abuse.
Dr. Ines Schroeder
Dr. Ines Schroeder testified regarding the psychological and interactional evaluations of the mother and the children. The court granted the petitioner's request to qualify Dr. Schroeder as an expert in forensic psychology.
Dr. Schroeder interviewed the children on 6/27/03. See State's Exhibit G. During the interviews, all three children disclosed physical and sexual abuse by the father. Dr. Schroeder testified that their disclosures had indicia of reliability. She also indicated that both Maria Martha V. and Aricela V. exhibited symptoms of Posttraumatic Stress Disorder (PTSD) including anxiety, nervousness and safety concerns. She observed that Maricela V. avoided thinking about the abuse. The children expressed concerns about being reunited with their mother because they did not believe she would be able to protect them from their father.
Dr. Schroeder testified regarding her evaluation of the mother. The mother was evidently a victim of long-term abuse. The mother appeared to minimize the abuse of the children. The mother denied that there was a possibility that sexual abuse occurred. She minimized the domestic violence and physical abuse of the children within the home. Her behavior was consistent with someone who had suffered long-term abuse. Dr. Schroeder testified that the longer a person suffers abuse, than the longer it takes for the person to discuss the abuse. The mother's prognosis was poor. Dr. Schroeder questioned whether the mother would ever be able to break the cycle of victimization instilled in her over the last twenty-five years.
She also conducted an interactional evaluation of the mother and children. While Araceli V. seemed to have a bond with the mother, Maria Martha V. and Maricela V. did not want to interact with the mother. The children appeared to be bonded to one another.
Dr. Schroeder did not believe that it was in the children's best interest to wait for the mother to come to terms with the situation. The children were suffering as a result of the lack of permanency and their fear of future abuse by the father.
Dr. Schroeder also testified on rebuttal.
Maria Cruz
Maria Cruz, DCF social worker, testified to her involvement in the case. She began working with the family on 10/7/03. When she was assigned to the case, the permanency plan was termination and adoption. She later wrote the TPR Social Study. See State's Exhibit K.
The court had ordered two-hour weekly supervised visits with the mother and the children. Ms. Cruz arranged and supervised the extended visitation. During the visits the mother spent most of the time playing with Aricela V. The mother's interaction with Maria Martha V. and Maricela V. was very minimal. The mother remained quiet for most of the time.
The department had domestic violence services in place for the mother at the Institute for Hispanic Families, and sexual abuse services at the YWCA. The sexual abuse services included both individual and group therapy. The mother was complying with the services; however, she did not seem to fully understand what had happened to the children.
Until 3/23/04, Ms. Cruz was seeing the children about every other week. During these meetings, Maria Martha V. expressed frustration with the mother for knowing about the abuse and failing to do anything about it. Maricela V. appeared to disassociate herself from the past.
On 11/3/03, the foster mother expressed concerns regarding letters found in the garbage. See State's Exhibits L, N, O, P, Q. The letters, including one from the father, were given to Maria Martha V. by her mother. See State's Exhibit O.
On 3/23/04, Maria Martha V. was transferred to a new legal risk/pre-adoptive home. The new foster mother expressed interest in adopting all three girls. The department continued to make efforts to place the other two children with Maria Martha V.
Although the mother cooperated with the services provided by DCF, her visitation was terminated based on the therapist's recommendation.
On 9/16/04, Maria Cruz testified again with an update on the children. See State's Exhibit R., Addendum to Social Study.
In 3/04, after Maria Martha V. moved to the new pre-adoptive home, the foster parents expressed concerns regarding her behavior. Initially, she did well in her new placement. But after Aricela V. was transferred there in 6/04, Maria Martha V.'s behavior worsened. She became depressed, isolating herself in her room and being argumentative. She was also not getting along with Maricela V. She expressed to the worker that she did not want to be adopted.
Maricela V. remained in the pre-adoptive home where all the girls were originally placed on 11/8/02. She expressed anger towards her sisters for moving to a different foster home. She wanted to stay with her current foster home, and she did not want to be placed with her sisters. In 8/04, she refused to continue therapy with Ellen Hernandez. Although she was not interested before in being adopted, she now expressed a desire to be adopted by her current foster family. The foster family had expressed a willingness to adopt her, if she was freed to adopt.
Although Araceli V. adapted well to her new placement, she continued to express fear of her father. She told her new foster parents that her father was going to take her away. She continued to have flashback-type nightmares. Although she liked her new foster home, she was still undecided about being adopted.
The original plan was to transition all the girls to the new legal risk home. However, Maricela V. did not want to go there. Ms. Cruz believed that the girls were struggling with a great deal of trauma around the sexual issues. The change in Maria Martha V. and Araceli V.'s placement has adversely affected the children's relationships with each other. The sisters were having visitation, but these visits were discontinued. The department was still continuing efforts to keep the children together.
Ms. Cruz also testified on rebuttal.
Shirley DeFlaviis
Shirley DeFlaviis, DCF social worker supervisor, testified to the department's involvement with the family. The case was transferred to her unit in 11/02. The children were committed to DCF on 1/21/03. In 2/03, after the allegations of sexual abuse were made by the children, the father's visitation was suspended pending further investigation and court action. On 3/4/03, the court suspended the father's visitation and ordered him not to have any contact with the children. A few weeks later, the mother visitation was suspended after she gave the girls a cell phone and notes during a visit. The mother's visitation was later reinstated under strict guidelines including measures to prevent any contact with the father. The mother was instructed not to bring anything to the visits and not to whisper to the children.
During this period, the children indicated that they did not want to live with the father. They were conflicted about whether they wanted to live with the mother. They talked about being angry with their mother. They did not trust her because she continued to have contact with the father while they were living in a domestic violence shelter. In fact, after the father was arrested, the mother regularly visited him at the jail. When the department asked the mother whether she was visiting the father in jail, she denied it.
Over the next several months, the mother's visitation with the children raised serious concerns. In May 2003, the foster mother found notes that the mother passed to the children in violation of the guidelines. One of the notes was written by the father to Maria Martha V. and Maricela V. The father's note violated the no contact orders that were in effect. In August 2003, the department was concerned when the mother brought a family photo album to the visitation that included pictures of the father kissing Maria Martha V. and Maricela V.
During the time the case was assigned to Ms. DeFlaviis's unit, the mother received services from the department. The department provided domestic violence services and counseling (Interval House and the Institute for Hispanic Families), visitation services, and transportation assistance. Although the mother participated in the services, she never acknowledged the sexual abuse allegations. However, she did acknowledge the father's physical abuse of her and the children. The department discussed with the mother her safety plan. She talked about possibly moving to Florida without him, but she had no source of income and continued to live in the family home. She received financial assistance from the father's relatives, who stayed with her on and off.
Before the father was incarcerated, the department provided him with services. He received substance abuse services through the Institute for Hispanic Families. In the fall of 2002, the service provider indicated that the father was not vested in the treatment, he was going only to satisfy DCF, and he had not made any gains in treatment. He was scheduled to receive anger management counseling through the Institute for Hispanic Families when he was arrested.
Ms. DeFlaviis testified that no relatives had stepped forward to be placement resources for any of the children. In October 2003, the case was transferred to another social worker who was not supervised by Ms. DeFlaviis.
Cassandra Colon
Cassandra Colon, the mother's counselor at Interval House, testified regarding her contact with the mother. The mother was involved in the Mother Care Program from December 2002 to December 2003. The mother had previously stayed at the Interval House's domestic violence shelter in March 2002, but she left against the shelter's advice and went back to the father. Beginning in December 2002, Ms. Colon worked weekly with the mother addressing issues relating to domestic violence including counseling, safety planning, and economic independence.
Although the mother said she did not want to go back with the father, her actions were contrary. The mother admitted to visiting the father in jail. The mother said she visited him because she was lonely and for economic reasons. During this period, she lived in the family home, where the father's relatives stayed occasionally and helped her financially.
During the counseling, Ms. Colon discussed with the mother the allegations of physical and sexual abuse. When the mother talked about the physical abuse, she expressed fear of her husband. She indicated that he would grab her by the hair. For the most part, the mother denied being aware of any sexual abuse of the children, although she did talk about the father being with the girls behind closed doors. However, at a session in August 2003, the mother admitted that she had come to the realization that the father had sexually abused the children. She was sorry for not paying attention and listening to her daughters, but she denied knowing it was going on.
The mother completed Ms. Colon's program in December 2003. Ms. Colon recommended that she start attending the domestic violence support group at the Interval House, which met on a regular basis. Overall, Ms. Colon believed that the mother had made some progress in improving her self-esteem. While the mother had learned about safety planning, she was limited in her ability to explain and implement a safety plan.
Maria Isabella Perez
Maria Isabella Perez, counselor at the Institute for Hispanic Families, testified regarding the mother's counseling. The mother received domestic violence services from December 2002 to December 2003. Ms. Perez met with the mother for a total of thirteen individual sessions (semi-monthly). After completing the individual sessions, the mother attended approximately fifteen domestic violence group sessions.
The goal of the counseling was to help the mother gain an understanding of the impact of domestic violence on her and the children. When she began the program, the mother had a limited understanding of the impact of domestic violence on her and the children. The mother indicated that when the father abused alcohol he became extremely aggressive, and he used corporal punishment on her and the children. The mother minimized the physical abuse by saying that the father was only violent when he was under the influence of alcohol. She denied having any knowledge of sexual abuse of the children by the father. She said that if she had known, she would have done something to prevent it. During the counseling, Ms. Perez asked the mother whether she was having contact with the father. The mother denied having any contact with him.
After completing the program, the mother had some understanding of the fear involved in domestic violence, but she could not elaborate any further. She was also not fully capable of processing the possibility of divorce. Her living situation complicated matters. She had no source of income and was still living in the family home with the financial support of the father's relatives. After the mother finished her counseling with Ms. Perez, she was referred to a sexual abuse program at the YWCA.
Ellen Hernandez
Ellen Hernandez, a licensed clinical social worker, testified regarding individual counseling provide to the girls. The court granted the petitioner's request that she be qualified as an expert in child therapy and child therapy for sexual abuse.
Maria Martha V. started weekly therapy sessions in December 2003. When she started the therapy, she presented with a number of severe symptoms including sleep disturbances, nightmares, intrusive thoughts, and safety concerns. As a result, she was diagnosed with PTSD resulting from physical and sexual abuse by the father.
Maria Martha V. was described as being hypervigilant, always concerned about her safety and very fearful of her father. She felt that no one could keep her safe from her father. Her anxiety manifested itself in a number of ways including severe sleep disturbances. She had episodes of waking up from a nightmare about her father and feeling that he was in bed with her. When this happened, she was so paralyzed with fear that she was unable to move. As a result, an intercom system was installed in her bedroom to allow her to call her foster mother when she was unable to move. The same intercom system was installed in Araceli V.'s bedroom because she had similar sleep disturbances. Maria Martha V. felt that her mother could not keep her safe from her father. She expressed distrust of her mother because her mother lied about what happened to them, witnessed the abuse by the father, and failed to do anything about it. She believed that once her father was released from jail; her mother would go back with him. She indicated that she only wanted to see her mother once more. She remained terrified of her father and never wanted to see him again. Ms. Hernandez testified that Maria Martha V. would benefit from termination because it would give her a degree of safety and protection. Although Maria Martha V. expressed concerns that her father would continue to look for her in the future, termination would be the best demonstration that she would not be reunified with her parents. She had indicated that she did not want to be adopted, but she wanted to remain at her current foster placement until she turns 18.
Maricela V. began weekly therapy sessions in January 2004, and attended approximately twenty-four sessions. She presented with several issues including severe hypervigilance, apathy, and difficulty discussing her feelings. She indicated that she was terrified of her father. Based on these symptoms, she was diagnosed with PTSD. During this period, she was not getting along with her sisters. She was upset with Maria Martha V. for not wanting to visit the mother, and with both sisters for moving to another foster home. She recently discontinued therapy with Ms. Hernandez. Ms Hernandez testified that Maricela V. did not feel safe enough to explore issues without falling apart.
Maricela V. would benefit from termination because it would provide her with protection and safety. She felt that her mother would not protect her from the father after his release. Ms. Hernandez testified that it is in Maricela V.'s best interest to be adapted by her current foster family.
Araceli V. only began receiving therapy from Ms. Hernandez in late July 2004/early August 2004. She attended six weekly therapy sessions and two family therapy sessions. Araceli V. presented with several issues including sleep disturbances, intrusive thoughts, flashbacks, and safety concerns. She expressed being terrified of her father, and she never wanted to see him again. She was so concerned about being found by her father that she wanted to change her name. She was also very afraid for her sisters' safety. Although she indicated that she wanted to see her mother again, she would not say when and how often. She liked her new foster home but remained very fearful.
Ms. Hernandez testified that Araceli V. would benefit from termination because it would provide her with safety and protection. Araceli V. expressed a desire to be adopted by her current foster family.
In March 2004, Ms. Hernandez recommended that visitation with the children and mother be suspended due to concerns about the children's well-being. See State's Ex. T. The children do not want to reunify with the mother because they believed she would go back with the father after his release.
Ms. Hernandez also testified on rebuttal regarding her concerns if the father's parental rights were terminated but not the mother's rights. Ms. Hernandez testified that contact with the mother was not recommended in the foreseeable future. If the mother was going to have contact with the children, she would need to make sufficient progress in her therapy, demonstrate an awareness of the impact of the abuse on the children, and separate herself from the father.
James Pollard. Jr.
James Pollard, Jr., Department of Correction (DOC) security officer, testified regarding the father's phone and visitor records. The DOC records indicate that the mother visited the father at the prison seven times between 12/15/03 and 6/19/04. The father called the number listed for the mother 112 times between 11/29/03 and 8/25/04.
Donna Hoffman
Donna Hoffman, DOC counselor supervisor, testified regarding the father's criminal history. The father has been in DOC custody on his pending charges since 3/7/03. He does not have a criminal conviction record.
The respondent mother called two witnesses to testify at trial.
Gladys Soto-Carrion
The mother called as a witness Gladys Soto-Carrion, sexual assault counselor at the YWCA. Ms. Carrion testified regarding counseling she provided the mother between 8/03 and 2/04. The counseling ended after they reached the twelve session per year limit. When the counseling began, Ms. Carrion tried to educate the mother regarding the different effects of domestic violence and sexual abuse. The mother had a difficult time expressing her feelings. Ms. Carrion continued to educate the mother and to help her learn how to express her feelings. By the end of the sessions, the mother was better able to express herself. The mother indicated that she felt sad about what had happened to her and the children. She wanted an opportunity to continue to see the children and apologize to them. The counseling ended before they really had an opportunity to explore the specifics of the sexual abuse allegations.
The counselor believed that the mother was also a victim of domestic violence. The mother admitted that the father had abused her physically and emotionally. Ms. Carrion believed that the mother needed a longer period of rehabilitation because she had been abused for so long.
Gary Woodfield
The mother also called as a witness Gary Woodfield, GAL. He testified that the children have all expressed a preference to have their father's parental rights terminated. However, they do not want their mother's parental rights terminated. They want to have some contact with the mother although they do not want to be reunified with the mother. He testified that visitation with the mother should only occur after mother and children have made sufficient progress in counseling. As to Maria Martha V., Attorney Woodfield testified that it was in her best interests to have her father's parental rights terminated but not the mother's rights. He indicated that she was getting excellent care at her current foster home, and her permanency plan should be long-term foster care. As to Maricela V., Attorney Woodfield indicated that it was in her best interests to have her father's parental rights terminated but not her mother's rights. He indicated that she should remain at her current placement, and her permanency plan should be long-term foster care. As to Araceli V., Attorney Woodfield testified that it was in her best interests to have her father's parental rights terminated but not the mother's rights. He indicated that she was getting excellent care at her current foster home, and her permanency plan should be long-term foster care.
The court will provide additional facts, as needed, that are found by clear and convincing evidence.
ADJUDICATION Reunification
The first issue the court must address is whether DCF met its burden concerning reunification efforts. The court must determine if "the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts provided such finding is not required if the court has determined at a hearing pursuant to subsection (b) of section 17a-110 or section 17a-111b that such efforts are not appropriate." C.G.S. § 17a-112(j)(1). In accordance with § 17a-112(j)(1), "the department may meet its burden concerning reunification in one of three ways: (1) by showing that it made such efforts, (2) by showing that the parent was unable or unwilling to benefit from reunification efforts or (3) by a previous judicial determination that such efforts were not appropriate." (Citation omitted; emphasis added.) In re Ebony H., 68 Conn.App. 342, 348, 789 A.2d 1158 (2002).
"The term reasonable efforts was recently addressed by this court: Turning to the statutory scheme encompassing the termination of the parental rights of a child committed to the department, the statute imposes on the department the duty, inter alia, to make reasonable efforts to reunite the child or children with the parents. 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. Neither the word reasonable nor the word efforts is, however, 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. [R]easonableness is an objective standard . . . and whether reasonable efforts have been proven depends on the careful consideration of the circumstances of each individual case." (Citation omitted; internal quotation marks omitted.) In re Ebony H., supra, 68 Conn.App. 349. The department has "a continuing duty to make reasonable efforts." In re Vincent B., 73 Conn.App. 637, 644, 809 A.2d 1119 (2002). But "[t]he department is required only to make `reasonable efforts.' It is axiomatic that the law does not require a useless and futile act." (Citation omitted). In re Antony B., 54 Conn.App. 463, 476, 735 A.2d 893 (1999). In addition, "making no efforts to reunify a parent and his or her child may be reasonable in certain circumstances . . ." In re Vincent B., supra, 73 Conn.App. 645.
In evaluating the department's reunification efforts, the court may consider whether the department engaged the respondent, apprised the parent of what steps had to be taken to achieve rehabilitation, and gave the parent feedback on his or her progress in reaching that goal. In re Vincent B., supra, 73 Conn.App. 645. The court may take into consideration whether the department met "its burden of making reasonable efforts to achieve reunification by engaging the respondent and making available services aimed at instilling in him [or her] healthy parental skills." Id., 647. The court may also assess whether "steps taken by the respondent presented the department with a window of opportunity during which reasonable efforts at reunification should have been made." Id., 644. The court may find that the efforts were reasonable even though the department made mistakes. In re A., 55 Conn.App 293, 297-98, CT Page 16980 738 A.2d 222 (1999) ("The court is aware that [the department] has made mistakes in this case in failing to treat [the respondent] as a victim of domestic violence . . . These mistakes, however, do not defeat the proposition that reasonable efforts at reunification were made. In the first instance, counseling services were provided . . . Other, in home services were offered, but refused.").
In finding that DCF made reasonable efforts, the courts have given careful consideration of the circumstances of each individual case. In re Sheila J., 62 Conn.App. 470, 479, 771 A.2d 244 (2001) (department offered respondent services over several years, but she failed to avail herself of or participate meaningfully in those services including failing to attend many visits, and denying the fact that she needed to participate in counseling); In re Daniel C., 63 Conn.App. 339, 362-63, 776 A.2d 487 (2001) (respondents participated in services but continually relapsed and resumed abusing substances and alcohol, so the department declined to pursue reunification as a goal after the children were removed; "[t]he dissolution of this family resulted from the respondents' cycle of alcohol and substance abuse and not from the failure of the department to provide services and assistance."); In re Ebony H., supra, 68 Conn.App. 350 (respondent's inability to overcome her drug addiction and failure to comply with services "thwarted the department's efforts to reunify her and the child"); In re Amneris P., 66 Conn.App. 377, 387, 784 A.2d 457 (2001) (department's "efforts were hampered by the respondent's passivity, her cognitive limitations and the extended period of time that had elapsed from the time of the child's placement until the respondent's decision to begin work toward rehabilitation."); In re Dorrell R., 64 Conn.App. 455, 466, 780 A.2d 944 (2001) ("respondent requested a referral for drug treatment from the department, which the department provided. "She once again failed to follow through."); In re Mariah S., 61 Conn.App. 248, 260, 763 A.2d 71 (2000) ("department cannot be blamed for the fact that the respondent became a `stranger' to her child, . . . because of her own unwillingness to take advantage of the many opportunities that the department provided to help her develop parenting skills and to bond with her child."); In re Amanda A., 58 Conn.App. 451, 457, 755 A.2d 243 (2000) ("department did all it reasonably could do to reunify the respondent with her children, and that it was the conduct of the respondent that led to the failure of those efforts."); In re Amber B., 56 Conn.App. 776, 783, 746 A.2d 222 (2000) ("appropriate and timely services were provided, including psychological counseling, transportation assistance, parenting and substance abuse counseling, and visitation coordination," but respondent failed to comply with services; "respondent was not the primary parent and he had no intention, nor the ability, to be a full-time caretaker for the child."); In re Antonio M., supra, 56 Conn.App. 547 (department offered services to respondent, many of which she rejected; "[w]ithout participation [by the respondent] in the services offered . . . without her acceptance of responsibility for the abuse which took place in the home and her acknowledgment of her own need to improve as a parent, further services would have been of no benefit toward any reunification."); In re Natalia G., 54 Conn.App. 800, 803, 737 A.2d 506 (1999) ("department was not aware of the respondent's whereabouts despite the fact that the trial court had ordered the respondent to keep the department apprised of his address;" respondent tested positive for cocaine and heroin and refused to comply with substance abuse treatment recommended, and did not inquire about or visit his daughter); In re Antony B., supra, 54 Conn.App. 475 ("respondent has been unable to maintain housing and has been intermittently homeless, living in shelters.")
In the alternative, the court may also determine that the respondent was either unable or unwilling to benefit from reunification efforts. "The department is required only to make `reasonable efforts' . . . [i]t is axiomatic that the law does not require a useless and futile act." (Citation omitted). In re Antony B., supra, 54 Conn.App. 476. The court may find by clear and convincing evidence that "the department had made reasonable efforts to reunify the respondent with the children [, and] [t]he respondent's subsequent failure to take advantage of those efforts establish her [or his] inability or unwillingness to benefit from those reasonable efforts." In re Alexander T., 81 Conn.App. 668, 676, 841 A.2d 274 (2004).
In making this determination, the court may consider whether "the respondent's positive step in participating in a treatment program demonstrated a degree of rehabilitation in itself." In re Vincent B., supra, 73 Conn.App. 645 (trial court reversed because reasonable efforts were not made when the department decided not to engage in further efforts based on its prior experiences with the respondent, despite the respondent taking steps and being in a position to benefit from services; respondent had successfully completed long-term inpatient substance abuse treatment and counseling for anger management and depression, and had attended regularly scheduled supervised visitation; there was no evidence of relapse in those areas). Id., 645. In addition, the court may consider whether the respondent "was unwilling or unable to formulate an appropriate plan for [child] . . ." Id., 647. "Expert testimony is not required to examine the respondent's history with the department and the trouble she has experienced in achieving rehabilitation to determine that the respondent was unable or unwilling to benefit from the efforts of the department." In re Alexander I., supra, 81 Conn.App. 676.
Mother
The court must determine whether the department met its reunification burden as to the mother. The petitioner alleges that the department made reasonable efforts to reunify the child with the mother. The department became involved with the family on 3/1/02. Since then, DCF provided numerous services to the mother. These reasonable efforts included case management services, domestic violence shelter services and counseling through the Interval House, individual and domestic violence counseling through the Institute for Hispanic Families, therapy through the Sexual Assault Crisis Center, visitation services, transportation assistance, treatment and permanency planning, referrals to appropriate services, and restraining order assistance. The department's efforts were hampered by the mother's passivity and her failure to acknowledge the father's sexual abuse of the children. The department did everything reasonable, and it was the mother's conduct that led to the failure of these efforts.
The court finds by clear and convincing evidence that the department made reasonable efforts to locate the mother and to reunify her with the children.
Father
The court must also determine if the department met its reunification burden as to the father. The petitioner alleges that the father was unable or unwilling to benefit from reunification efforts due to his incarceration and the no contact orders. The department became involved with the family on 3/1/02. Since then, DCF made reasonable efforts to locate the father and to reunify the children with the father. These reasonable efforts included case management services, visitation services, treatment and permanency planning, referrals to appropriate services, substance abuse treatment, anger management counseling, individual counseling, and parenting counseling.
Before he was arrested, the father participated in the reunification services, but he failed to make sufficient progress toward the identified treatment goals. His failure establishes his unwillingness or inability to benefit from those efforts. After the father was arrested, the department's decision to stop reunification efforts was reasonable under the circumstances.
The court finds by clear and convincing evidence that the department made reasonable efforts to locate the father and to reunify him with the children, and the father was unable or unwilling to benefit from the reunification efforts.
Statutory Ground
Each statutory basis set out in C.G.S. § 17a-112(j) is an independent ground for termination. In re Baby Girl B., 224 Conn. 263, 293, 618 A.2d 1 (1992). The petitioner is required "to prove by clear and convincing evidence, that one of the specific statutory bases for termination has been established." In re Baby Girl B., supra, 224 Conn. 293. "In the adjudicatory phase, the judicial authority is limited to evidence of events preceding the filing of the petition or the latest amendment, except where the judicial authority must consider subsequent events as part of its determination as to the existence of a ground for termination of parental rights." Practice Book § 35a-7. However, "[p]ost-adjudicatory date evidence may be considered in the adjudicatory phase in a termination of parental rights case alleging grounds of no ongoing parent-child relationship or failure to rehabilitate." P.B. § 35a-7, commentary; In re Amber B., supra, 56 Conn.App. 785 ("It is axiomatic that the court can rely on factors occurring after the date of the filing of the petition to terminate parental rights when considering if additional time would promote rehabilitation"); In re Stanley D., 61 Conn.App. 224, 230, 763 A.2d 83 (2000) ("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.")
Failure to Rehabilitate
DCF alleges that the respondent parents have failed to rehabilitate themselves after the children were adjudicated as neglected in a prior proceeding. The petitioner must prove that the "child has been found by the Superior Court . . . to have been 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." C.G.S. § 17a-112(j)(3)(B)(i). On 1/21/03, the children were adjudicated neglected and were committed to DCF.
The personal rehabilitation element of the statute must be proved by clear and convincing evidence. C.G.S. § 17a-112(j)(3)(E). Personal rehabilitation, as used in the statute, refers to the restoration of a respondent to a constructive and useful role as a parent. In re Migdalia M., 6 Conn.App. 194, 203, 504 A.2d 533 (1986). The parent's compliance with the court-ordered expectations entered at the time of the neglect adjudication is relevant but not dispositive to the rehabilitation finding. In re Luis C., 210 Conn. 157, 168-69, 554 A.2d 722 (1989). "The court, in proceedings to terminate parental rights . . . considers the specific steps issued in the order as a measure of the degree of `personal rehabilitation' . . . The specific steps are also considered `fair warning' of the potential termination of parental rights in subsequent proceedings pursuant to § 17a-112." In re Jeffrey C., 64 Conn.App. 55, 61-62, 779 A.2d 765 (2001), rev'd on other grounds, 261 Conn. 189, 802 A.2d 772 (2002). "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, 825 A.2d 127 (2003). "The failure to articulate expectations or to convey them to the respondent, however, does not in and of itself preclude a finding of failure to rehabilitate, . . . [the statute] does not provide that in order to achieve personal rehabilitation a parent must meet the expectations of a court as ordered pursuant to a commitment hearing . . . [N]or have our courts required an articulation of expectations or strict compliance thereto as a condition precedent to a finding of failure to rehabilitate." (Citations omitted.) In re Michael M., 29 Conn.App. 112, 125, 614 A.2d 832 (1992).
"[T]he statute requires the trial court to analyze the respondent'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.' There may be instances in which the evidence does not establish that parental rights should be terminated under this section, despite the fact that continuing support programs for the parent may be suitable or even necessary." In re Luis C., supra, 210 Conn. 167. 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." (Citations omitted; internal quotation marks omitted.) In re Eden F., 250 Conn. 674, 706, 741 A.2d 873 (1999). "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 child." (Citations omitted; internal quotation marks omitted). In re Victoria B., 79 Conn.App. 245, 254-55, 829 A.2d 855 (2003). "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." (Citations omitted; internal quotation marks omitted.) In re Galen F., 54 Conn.App. 590, 594, 737 A.2d 499 (1999).
Mother
Based on the evidence introduced at trial, it is clear that Juana V. has failed to achieve the degree of rehabilitation at the time of the filing of the petition that would put her in a position to resume the role of an effective parent of the children.
The mother was given fair warning as to what conduct was required, or must have been avoided, in order to prevent termination of her parental rights. See In re Samantha C., supra, 268 Conn. 631. On 11/15/02 and 1/21/03, the mother was ordered to comply with specific steps to achieve reunification with the children including participate in counseling and make progress toward the identified treatment goals, obtain and/or cooperate with a restraining/protective order and/or other appropriate safety plan as approved by DCF to avoid further domestic violence incidents, secure and maintain adequate housing and legal income, visit the child as often as DCF permits, and demonstrate appropriate parent-child interaction during visitation.
The department provided extensive services to the mother starting in March 2002, including DCF case management services, supervised visitation, domestic violence shelter placements, domestic violence counseling, individual counseling, transportation assistance, and visitation services.
Although the mother participated in numerous services and programs, she failed to make sufficient progress toward the identified treatment goals. She attended numerous counseling sessions, but she failed to understand the impact of physical and sexual abuse on the children. For the most part, she remained in a state of denial regarding the sexual abuse allegations. The mother failed to take responsibility for the abuse which took place in the home. She did not acknowledge her own need to improve as a parent. By assisting the father in having contact with the children, she violated the specific steps and jeopardized each child's feeling of safety. Even though the department worked with her to develop a safety plan, she did nothing about it. She continued to live in the father's home with financial assistance from his relatives. She failed to separate herself from the father. She had numerous telephone contacts and jail visits with the father, while at the same time denying such contact to the department. She indicated to the department that whether she reunites with the father is up to him.
The Court can also consider rehabilitative efforts subsequent to the filing of a petition (1/20/04) in determining whether the parent could assume a responsible position in the life of the child within a foreseeable period of time. Practice Book § 35a-7; In re Amber B., supra, 56 Conn.App. 785. Since the filing date, the mother failed to achieve the necessary degree of rehabilitation. She failed to comply fully with the specific steps.
The children have complex needs relating to the years of physical and sexual abuse by the father. They have suffered significant harm that will require extensive treatment. The children have lost faith in the mother's ability to be a good parent. They no longer trust her because she failed to protect them from the father, she assisted his efforts to contact them, and she planned to reunite with him after his release.
Even if it could be argued that she has made some progress toward rehabilitation, considering the ages and needs of the children, it is not of such a degree that would allow this court to find that she could be a responsible parent within a foreseeable period of time. The mother would need a substantial period of time addressing her needs before she could assume the role of a responsible parent. In re Sheila J., 62 Conn.App. 470, 481, 771 A.2d 244 (2001).
The court finds, by clear and convincing evidence, that the mother failed to achieve the degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the ages and needs of the children, the mother could assume a responsible position in the lives of the children. Therefore, the court finds that the petitioner has proved the ground of failure to rehabilitate as to the mother. C.G.S. § 17a-112(j).
Father
Based on the evidence introduced at trial it is clear that Martin V. has failed to achieve the degree of rehabilitation at the time of the filing of the petition that would put him in a position to resume the role of an effective parent of the children.
The father was given fair warning as to what conduct was required, or must have been avoided, in order to prevent termination of his parental rights. See In re Samantha C., supra, 268 Conn. 631. On 11/15/02 and 1/21/03, the father was ordered to comply with specific steps to achieve reunification with the child including participate in counseling and make progress toward the identified treatment goals, obtain and/or cooperate with a restraining/protective order and/or other appropriate safety plan as approved by DCF to avoid further domestic violence incidents, secure and maintain adequate housing and legal income, no substance abuse, no involvement/further involvement with the criminal justice system, visit the child as often as DCF permits, and demonstrate appropriate parent-child interaction during visitation.
Although the father participated in programs before he was incarcerated, he failed to fully comply with the specific steps. He did not make sufficient progress toward the identified treatment goals. Prior to his incarceration, he did not benefit from individual counseling at The Institute for Hispanic Families. The provider reported that the father was not vested in the treatment; he was going only to satisfy DCF; and he failed to make any demonstrable gains in treatment. When the father had visitation, the visits were not productive in establishing a positive parent-child relationship. After he was arrested and no-contact orders were entered, he did not cooperate with the restraining/protective order. He made multiple attempts to have contact with the children. Due to his arrest, he was unable to make himself available to assume a responsible position in the children's life within a reasonable time.
The court can also consider rehabilitative efforts subsequent to the filing of the petition (1/20/04) in determining whether the parent could assume a responsible position in the life of the child within a foreseeable period of time. Practice Book § 35a-7; In re Amber B., supra, 56 Conn.App. 785. The evidence indicates that the father failed to achieve the necessary degree of rehabilitation. He failed to comply fully with the specific steps.
The children have very complex needs as a result of the father's abuse. The children remain terrified of the father. Once he is released, they believe he will try to take them away. They want nothing to do with him.
Even if it could be argued that he made some progress toward rehabilitation, considering the ages and needs of the children, it is not of such a degree that would allow this court to find that he could be a responsible parent within a foreseeable period of time. The father would need a substantial period of time after he is released from incarceration addressing his needs before he could ever assume the role of a responsible parent. In re Sheila J., supra, 62 Conn.App. 481.
The court finds, by clear and convincing evidence, that the father failed to achieve the degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the ages and needs of the children, the father could assume a responsible position in the lives of the children. Therefore, the court finds that the petitioner has proved the ground of failure to rehabilitate as to the father. C.G.S. § 17a-112(j).
Acts of Commission or Omission
In addition, DCF alleges that the children have been denied, by reason of an act or acts of parental commission or omission including, but not limited to, sexual molestation or exploitation, 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. C.G.S. § 17a-112(j)(3)(C). Under this provision, parental rights can be terminated for one or more parental acts of commission or omission that adversely affect a child's well-being. "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 (1991).
The court must determine whether the requisite injury has befallen the child as a result of acts of commission or omission by the parents. In re Kezia M., supra, 33 Conn.App. 20. The statute "does not permit the termination of parental rights based on speculation as to what acts may befall a child." In re Kelly S., 29 Conn.App. 600, 614, 616 A.2d 1161 (1992).
"This provision authorizes the termination of parental rights where specific acts of parental commission or omission have caused serious physical or emotional injury to the child." In re Felicia D., 35 Conn.App. 490, 502, 646 A.2d 862 (1994) (child was victim of sexual abuse, and had sustained serious head injuries.). "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." C.G.S. § 17a-112(j)(3)(C). "There is nothing in this clear statutory language that limits the acts of commission or omission to the serious physical injury of a child, rather than the serious emotional injury of a child." In re Sean H., 24 Conn.App. 135, 144-45, 586 A.2d 1171 (1991) (father stabbed ex-wife to death in full view of four of his children, leaving the children homeless, with no caregiver and with permanent emotional injury; father had emotionally and physically abused one of the children and the ex-wife in front of the other children over a long period of time which resulted in that child's placement in psychiatric inpatient treatment and contributed to the emotional injury of the other four children.)
"The acts of both parents are pivotal in assessing the chain of circumstances which led to these proceedings." In re Juvenile Appeal (85-2), supra, 3 Conn.App. 191. Evidence admitted to establish one parent's acts of commission are relevant to establish, by inference, the other parent's acts of omission. Id., 191. "The young age of the children and the fact that their mistreatment occurred in the privacy of the family home demand that proof of one patent's failure to halt the mistreatment perpetrated by the other must rest largely upon circumstantial evidence." Id.
In finding parental acts of commission or omission, the courts have given careful consideration of the circumstances of each individual case. In re Sean H., supra, 24 Conn.App. 145. (Loss of a parent, abuse suffered by other family members, and mental health treatment received by the child(ren).); In re Sheena I., 63 Conn.App. 713, 723, 778 A.2d 997 (2001) (parent's lengthy absences from the home, knowledge of the neglect and abuse inflicted on her children by the other parent, and failure to take steps to protect her children from such abuse); In re Tabitha I., 51 Conn.App. 595, 603, 722 A.2d 1232 (1999) (parent's failure to protect children in her care from sexual abuse by their older siblings; parent's instruction to a child not to disclose to a therapist anything about the sexual abuse or any other goings on of the family); In re Antonio M., supra, 56 Conn.App. 542-43 (child exposed to sexually explicit knowledge beyond his years, if not to actual sexual abuse; mother continually exposed her child to the risk of serious physical injury by associating with dangerous men, even though she was not the person who actually inflicted the serious physical injury); In re Lauren R., 49 Conn.App. 763, 772, 715 A.2d 822 (1998) (parent's failure to believe the child's account of abuse or the perpetrator's admission of abuse, failure to protect child from further abuse, failure to avail herself of reunification services, and failure to cooperate with the police and the department to ensure the child's protection); In re Anna B., 50 Conn.App. 298, 307, 717 A.2d 289 (1998) (parent failed to accept the sexual victimization of the children, and refused to acknowledge the problem); In re Mark C., 28 Conn.App. 247, 254-55, CT Page 16990 610 A.2d 181 (1992) (father committed all the acts of physical and sexual abuse; while the 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 the mother); In re Christine F., 6 Conn.App. 360, 364-69, 505 A.2d 734 (1986) (mother unable to care for and protect a child, due in part to limited mental ability and domestic violence); In re Theresa S., supra, 196 Conn. 26 ("[t]here was a loss of trust in the mother and, consequently, emotional injury to the children.").
Mother
The mother's parental acts of commission and omission adversely affected the physical, educational, moral and emotional well-being of the children. For years, the mother witnessed the father's physical and sexual abuse of the children. She failed to take steps to protect her children from the abuse. Even though she was a victim of domestic violence, she was not relieved of her parental responsibilities. She avoided dealing with the situation, for years. By failing to act, she enabled the father's abuse.
Although she eventually sought the department's assistance, she failed to cooperate fully with the services and the court orders. She refused the department's offer of domestic violence shelter services. As a result, the children suffered additional abuse. After the children were removed, she continued to enable the father. She assisted the father in his attempts to contact the children in violation of the no contact orders. She refused to believe the children's account of sexual abuse. By her actions, she jeopardized each child's feeling of safety and compounded the children's emotional trauma. She remained committed to her marriage. She continued to have regular contact with the father after he was arrested. She was untruthful with the department about the contact.
Father
The father's parental acts of commission and omission adversely affected the physical, educational, moral and emotional well-being of the children. The father committed numerous acts of abuse on the children. He engaged in a pattern of physical and sexual abuse. His sexual exploitation of the children grew worse as they got older. He failed to appreciate the impact his behavior had on the children.
Children
The children have been denied the care, guidance and control necessary for their well-being. As a result, they have experienced serious physical and emotional injury. The children suffered years of physical and sexual abuse by the father. The mother did not protect them from the abuse, and she failed to comply with the no contact orders. The children are terrified of the father, and they do not trust the mother to keep them safe. They suffer from numerous symptoms of PTSD including anxiety, sleep disorders and safety concerns.
The court finds, by clear and convincing evidence, that the children have been denied, by reason of the respondents' acts of parental commission and omission, the care, guidance or control necessary for their physical, educational, moral and emotional well-being. Therefore, the court finds that the petitioner has proved the ground of parental acts of commission or omission as to the mother and father pursuant to C.G.S. § 17a-112C).
DISPOSITION
"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)]." In re Vianna A., 83 Conn.App. 17, 26, 847 A.2d 1073 (2004). "The factors, however, serve simply as guidelines to assist the court in its determination of the child's best interest, and each factor need not be proven by clear and convincing evidence." (Citations omitted; internal quotation marks omitted.) In re Victoria B., supra, 79 Conn.App. 258-59. "The judicial authority may admit into evidence any testimony relevant and material to the issue of the disposition, including events occurring through the close of the evidentiary hearing, but no disposition may be made by the judicial authority until any mandated social study has been submitted to the judicial authority. Said study shall be marked as an exhibit subject to the right of any party to require that the author, if available, appear for cross-examination." Practice Book § 35a-9.
These criteria and this court's findings are as follows.
(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."DCF offered appropriate and timely services to facilitate the return of the children to the respondent mother. DCF arranged for her to participate in numerous programs including case management services, domestic violence shelter services and counseling through the Interval House, individual and domestic violence counseling through the Institute for Hispanic Families, therapy through the Sexual Assault Crisis Center, visitation services, transformation services, treatment and permanency planning, referrals to appropriate services, and restraining order assistance. Because she was unable or unwilling to benefit from these efforts, the services provided to the mother had little impact on improving her child-caring and parenting abilities. The department did everything it reasonably could to reunify the mother with the children, and it was the mother's conduct that led to the failure of those efforts.
DCF offered appropriate and timely services to facilitate the return of the children to the father. Before the father was arrested, DCF arranged for him to participate in programs including case management services, visitation services, treatment and permanency planning, referrals to appropriate services, substance abuse treatment, anger management counseling, individual counseling, and parenting counseling through the Institute for Hispanic Families. Because he was unable or unwilling to benefit from these efforts, the services provided to the father had little impact on improving his child-caring and parenting abilities. The father is currently incarcerated due to his criminal activity. The department did everything it reasonably could to reunify the father with the child, and it was the father's conduct that led to the failure of those efforts.
(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."DCF has made reasonable efforts to reunify the mother with the children by offering services to address her issues. She was unable or unwilling to fully benefit from the efforts.
DCF has made reasonable efforts to reunify the father with the children by offering services to address his issues. He was unable or unwilling to fully benefit from the efforts.
(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 the parties have fulfilled their obligations under such order."On 11/15/02 and 1/21/03, the mother was ordered to comply with specific steps. She failed to fully comply with specific steps including participate in counseling and make progress toward the identified treatment goals, obtain and/or cooperate with a restraining/protective order and/or other appropriate safety plan as approved by DCF to avoid further domestic violence incidents, secure and maintain adequate housing and legal income, and visit the children as often as DCF permits and demonstrate appropriate parent-child interaction during visitation. The mother failed to fulfill her obligations under the court orders.
On 11/15/02 and 1/21/03, the father was ordered to comply with specific steps. He failed to fully comply with the specific steps including participate in counseling and make progress toward the identified treatment goals, obtain and/or cooperate with a restraining/protective order and/or other appropriate safety plan as approved by DCF to avoid further domestic violence incidents no involvement/further involvement with the criminal justice system, visit the child as often as DCF permits and demonstrate appropriate parent-child interaction during visitation. The father failed to fulfill his obligations under the court orders.
(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."The children have little if any positive feelings toward their mother. They no longer trust her because she failed to protect them from the father's abuse. They are angry with her for knowing what was going on and not doing anything about it. Based on their experiences and the mother's continued contact with the father, they do not trust her to keep them safe from him.
The children have absolutely no positive feelings toward their father. They are all terrified of him and never want to see him again.
(5) "The age of the child"
Maria Martha V. is 16 (almost 17) years old. Marisela V. is 14 years old. Araceli V. is 10 years old.
(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."The mother has made little effort to adjust her circumstances or conduct to allow reunification with the children, so the children's return to her would be in the children's best interest. She failed to make progress toward the identified treatment goals. She failed to cooperate with the no contact orders. She did not secure and maintain adequate housing and legal income. She failed to demonstrate appropriate parent-child interaction during visitation.
The respondent father made little effort to adjust his circumstances or conduct to allow reunification with the children, so the children's return to her would be in the children's best interest. Before he was arrested, he failed to fully address his substance abuse and domestic violence issues. He failed to make sufficient progress toward the identified treatment goals. He failed to demonstrate appropriate parent-child interaction during visitation. He failed to cooperate with the restraining/protective order.
(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 parent or by the economic circumstances of the parent."The mother did not face any unreasonable interference from any person, or economic circumstances preventing her from establishing or maintaining a meaningful relationship with her children. Since the children were removed, the mother was provided the assistance of counsel at state expense. She was offered numerous services that probably would have led to reunification had she taken full advantage of them.
The father did not face any unreasonable interference from any person or economic circumstances preventing him from establishing or maintaining a meaningful relationship with his children. He was provided with the assistance of counsel at state expense. He was offered services but he failed to fully comply. The father's visitation was terminated due to the children's disclosure of sexual abuse by the father and his subsequent arrest.
BEST INTEREST OF THE CHILD CT Page 16995
The court must now address the issue of whether termination of parental rights is in the best interest of the children. This is part of the dispositional phase of a termination proceeding. In re Valerie D., 223 Conn. 492, 511, 613 A.2d 748 (1992) ("the determination of the child's best interests comes into play only after statutory grounds for termination of parental rights have been established by clear and convincing evidence"). The court can consider all events occurring through the close of the dispositional hearing. Practice Book § 35a-9.The Appellate Court has "consistently held that to allow a child to languish in foster care is not in the child's best interest." (Internal citation omitted) In re Drew R., 47 Conn.App. 124, 131, 702 A.2d 647 (1997). The children have been in foster care since November 2002. Given their ages and needs, the children require a caretaker that will be consistently available to meet their emotional and physical needs. The respective foster parents are stable and permanency is paramount to each child's development. The children are doing as well as can be expected given the circumstances and have bonded with their foster parents. The foster parents have expressed a willingness to adopt. Removal from the foster homes would cause harm to the children's well-being.
The respondent parents have significant issues that impact on their ability to be good parents. Since the children were removed, the department has provided services to the parents. The parents were unable or unwilling to benefit from these services.
The mother failed to make sufficient progress toward the identified treatment goals. The mother never fully acknowledged the physical and sexual abuse on the children. She made no effort to separate herself from the father. She continued to have regular contact with the father and to live in the family home with the assistance of the father's relatives. She was unwilling to sacrifice her relationship with the father for the benefit of the children. It is in the children's best interests that her parental rights be terminated. However, the court recognizes that the children want to have some contact with the mother.
The father physically and sexually abused the children for years. The children are terrified of the father. The children would suffer substantial emotional harm if they were subject to any future contact with the father. He is currently incarcerated, and it is unclear when he will be released.
The respondents are not in a position to meet the needs of the children in the foreseeable future. To delay or disrupt a permanent placement while the parents continue to work on their issues, with no clear end in sight, is not in the best interest of the children.
Based upon the foregoing findings, and having considered all the evidence and statutory considerations, the court finds by clear and convincing evidence that it is in the children's best interest to terminate the parental rights of Juana V. and Martin V.
JUDGMENT
The petition is granted and judgment may enter terminating the parental rights of Juana V. and Martin V. The Commissioner of Children and Families is appointed statutory parent for Maria Martha V., Marisela V., and Araceli V. The Commissioner is to file with the court no later than thirty days following the date of judgment, a written report toward a permanent plan for the children.
The children are old enough to express their wishes regarding future contact with the mother. They have expressed their desire to have contact with the mother. The court believes it is in the children's best interests that they be empowered to decide whether to have contact with the mother. After being victims for so long, they need to start taking control of their lives. This is the first step.
While the children remain in the department's care, the children may request visitation with the mother. If any of the children wish to have visitation, the department is ordered to make the appropriate arrangements. The department must file a report within one month regarding the status of visitation with the mother. The department is ordered to include information regarding any future visitation in the reports required pursuant to C.G.S. § 17a-112(o).
If the children are adopted, the children's wishes regarding visitation with the mother must be taken into consideration.
The court finds it is in the children's best interests to have visitation with each other. The department must file a report within one month regarding efforts to restart sibling visitation. The department is ordered to include information regarding any future visitation in the reports required pursuant to C.G.S. § 17a-112(o).
The court further finds that the Department of Children and Families has made reasonable efforts to effectuate the permanency plan.
BY THE COURT:
Bentivegna, J.