Opinion
No. U06-CP06-005948-A
April 15, 2009
MEMORANDUM OF DECISION
This is a termination of parental rights ("TPR") case.
On April 9, 2009, the mother decided to offer her written consent to the termination of her parental rights to Nicole R.-B. ("Nicole"). She was canvassed, and the court (Baldwin, J.) found such consent to be knowingly, voluntarily and intelligently made by the mother with the adequate advice and the effective assistance of her counsel, and the court accepted the mother's consent. With respect to the mother, upon the motion of the assistant attorney general, the court permitted the commissioner of children and families ("DCF") to amend her petition to add the ground of consent, and the court also permitted DCF to withdraw the non-consensual TPR ground set forth in such petition. After such consent and amendment were accepted, the mother and her counsel were excused from further participation in the proceeding.
Thereafter, on Tuesday, April 14, 2009, the assistant attorney general, the current DCF worker assigned to the family, the attorney for the father, and the attorney for Nicole appeared before the court and participated in the TPR trial. The father of Nicole, who was on probation in Texas, did not appear or participate by telephone as offered by the court, but he was not defaulted by the court. The trial proceeded with respect to the issue of whether the father's parental rights should or should not be terminated and with respect to the question of whether termination of his and the mother's parental rights was in the best interest of Nicole.
FACTS:
Each of the following facts is found by clear and convincing evidence:
1. Nicole was born in September, 2005.
This fact and much of the information set forth herein is contained in the four full exhibits and the motion for judicial notice.
2. On December 8, 2006, DCF filed a neglect petition and an ex parte motion for temporary custody in the Superior Court for Juvenile Matters ("SCJM"). On such date, the court found that Nicole was in immediate physical danger from her surroundings, that continuation in the mother's home was contrary to her welfare and the court granted to DCF an ex parte order of temporary custody ("OTC"). As of December 8, 2006, the father was not living with the mother and was not in custody of Nicole. The court, however, ordered specific steps for the father.
3. On December 15, 2006, the mother gave notice to the court that she contested the issuance of the ex parte OTC. The father was not present in court, and it was believed that he was in Texas.
4. On December 20 and 22, 2006, a contested hearing occurred. On December 22, 2006, the court (Wilson, J.) sustained the order of temporary custody.
5. On May 16, 2007, the plea date for the father, service by certified mail was confirmed. The father was not present. The court did not enter a default.
6. On September 25, 2007, upon the mother's nolo contendere plea that was accepted by the court (Brenneman, J.), Nicole was adjudicated neglected and she was committed to the care, custody and guardianship of DCF. The father was not present in court.
7. On August 12, 2008, DCF filed a motion for the court to review its permanency plan of TPR and adoption.
8. On August 19, 2008, DCF filed its TPR petition alleging as adjudicatory grounds against the father abandonment (Ground A), failure to rehabilitate (Ground B) and no parent-child relationship (Ground D), and Ground B against the mother.
General Statutes § 17a-112(j) provides that a court in a TPR proceeding must find that DCF has made reasonable efforts to reunify a parent and child unless the court finds "in this proceeding" that a parent is unable or unwilling to benefit from reunification efforts, except such finding is not required if there is a prior General Statutes 17a-111b determination or a TPR trial determination that such efforts at reunification are not required:
The Superior Court, upon notice and hearing as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that (1) the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent in accordance with subsection (a) of section 17a-111b, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts, except that such finding is not required if the court has determined at a hearing pursuant to section 17a-11b, or determines at trial on the petition, that such efforts are not required . . .
9. On August 22, 2008, the mother filed an objection to the proposed permanency plan. The father did not file an objection to such plan within the permitted period to do so.
Practice Book § 35a-14 (b) provides in part:
Any party who is in opposition to any such motion shall file a written objection and state the reasons therefor within thirty days after the filing of the commissioner of the department of children and families' motion for review of permanency plan and the objection shall be considered at the hearing. The court shall hold an evidentiary hearing in connection with any contested motion for review of the permanency plan. If there is no objection or motion for revocation filed, then the motion may be granted by the judicial authority at the date of said hearing.
Since the father never filed an objection, and the mother's objection is effectively withdrawn by her consent, the court approves the permanency plan of TPR and adoption.
10. On September 17, 2008, the SCJM (Randolph, J.) confirmed service by certified mail on the father.
11. On October 29, 2008, the court (Baldwin, J.) consolidated the permanency plan and objection with the TPR petition for trial.
12. On April 9, 2009, the SCJM (Baldwin, J.) accepted the respondent mother's consent to the termination of her parental rights.
13. The father currently is twenty years old. He dropped out of high school. The mother, who currently is twenty-two years old, moved in with him and his family when he was sixteen years old. Nicole was born to the mother when the father was sixteen. The father was at the hospital during her birth, but he did not sign the birth certificate.
14. The father moved to Texas in late August, 2006. He has not seen Nicole since he moved there. Nicole was approximately eleven months old when the father moved to Texas. She is now approximately forty-three months old.
15. On September 6, 2006, the father was arrested in Texas for possession of drugs with intent to deliver and for possession of marijuana.
16. In October 2007, the father was released from incarceration and placed on five years of probation. The father, who has never been legally employed to DCF's knowledge, was ordered to seek legal employment.
17. On November 30, 2007, the father was returned to incarceration because he again had been arrested for marijuana possession.
18. In March 2008, the father was released from incarceration.
19. On June 13, 2008, the father was arrested and charged with aggravated kidnapping.
20. In November, 2008, the father wrote to DCF that he was participating in computer classes and that he was attending Narcotics Anonymous while he was in prison.
21. On February 10, 2009, the father was released from incarceration, but he remained under house arrest. He is fitted with a GPS monitoring ankle bracelet and he is confined to his brother's home.
22. On March 25, 2009, DCF had telephone contact with the father. The father stated that he was unable to participate in services because of his home confinement. He also stated that his probation officer would be referring him to a substance abuse program and that he hoped to seek employment.
23. The father's current status is that he is a convicted felon who pled guilty to three felony drug charges and he is subject to ten years of probation. The aggravated kidnapping charge is still pending and he has a May 18, 2009, hearing concerning it.
24. The father has not financially supported Nicole, nor has he sent her any gifts or cards. During his last contact with DCF he did not inquire about Nicole. The father has had no involvement in Nicole's life; Nicole does not know who he is and does not ask for him.
25. During the limited time the father was not incarcerated, DCF offered to help the father find services in Texas. The father's last request was for furniture for his brother's apartment that currently contained one bed, an air mattress that the father slept on and a kitchen table.
26. The father has not rehabilitated to the point where he could parent Nicole.
27. The father does not have any parent-child relationship with Nicole, and because of his current circumstances, the father will not be able to develop any such relationship with Nicole at any time in the reasonable future.
28. Additional facts are set forth, infra. Unless otherwise specified, all facts set forth in this decision are found by clear and convincing evidence.
LAW APPLICABLE TO TERMINATION OF PARENTAL RIGHTS CASES:
The law applicable to this case is generally set forth in such recent cases as In re Davonta V., 285 Conn. 483 (2008); in In re Justice V., 111 Conn.App. 500 (2008); in In re Devaun J., 109 Conn.App. 832 (2008); in In re Joseph L., 105 Conn.App. 515, 939 A.2d 16 (2008); and in In re Marcus S., 2008 Ct.Sup. 3329, No. H12-CP07-012714-B, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Bear, J., February 29, 2008).
GENERAL STATUTES § 17A-112(k) FINDINGS:
The court has made findings earlier in this decision, some of which relate to the seven statutory factors applicable to the father. See pages 1-6, supra. In addition to those findings, the court makes the following findings applicable to the father:
1. The timeliness, nature and extent of services offered, provided and made available to the parent and each child by an agency to facilitate the reunion of each child with the parent.
A. The father:
Such father has made it impossible for DCF to determine what services would be of benefit to such father and to offer such services. Services, however, were in fact offered by DCF and other agencies, including the Texas correctional system.
B. The mother:
The mother has been offered a number of services relating to reunification, administrative and case management services, visitation and her issues as set forth in the exhibits.
C. Nicole has been offered and has received the following services from or facilitated by DCF, inter alia:
medical and dental services plus an MDE;
reunification services;
visitation;
transportation;
foster care services; and
administrative and case management services.
2. Whether DCF has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended.
DCF has made reasonable efforts to reunite the mother with such children. The father has not been interested in or available for reunification services, but DCF also made efforts with respect to the father that were reasonable under the circumstances into which the father had placed himself Neither parent was an appropriate candidate for reunification.
As noted above General Statutes § 17a-112(j) provides in relevant part:
The Superior Court . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that (1) the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent in accordance with subsection (a) of section 17a-111b, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts, except that such finding is not required if the court has determined at a hearing pursuant to section 17a-111b, or determines at trial on the petition, that such efforts are not required . . .
". . . [R]easonable efforts means doing everything reasonable, not everything possible . . ." In re Melody L., 290 Conn. 131, 144 (2009).
Given the father's lack of demonstrated interest in and lack of effort to remain involved with Nicole and with DCF after August 2006, although DCF attempted to do so, DCF was unable to and after August, 2006, was not required to provide services, including reunification services, to such father. The reasonable efforts made and facilitated by DCF with respect to services for the mother and the father were timely and adequate to address the issues that led to DCF involvement with each of them and to address the issues that continued or arose after such DCF involvement.
3. The terms of an applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order(s).
On December 8, 2006, specific steps were ordered for the father. Such father, however, was incarcerated in Texas and has not returned to Connecticut.
Before and after December 8, 2006, the father was not a serious or likely candidate for reunification with Nicole. Unfortunately, such father was unable, unwilling and not ready to benefit from reunification efforts. Since December 8, 2006, the father has either been incarcerated, under home confinement or on probation.
4. The feelings and emotional ties of each child with respect to his or her parents, any guardian of the person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties.
Nicole does not know her biological father and thus does not have a positive bond with such biological father.
Nicole has been out of the care of the mother since December 6, 2006. The mother is unable to provide a home for her and to insure her health, welfare and safety. The mother's sad and difficult circumstances and multiple disqualifying problems are set forth in detail in the exhibits.
Nicole's pre-adoptive family is a source of strength and support for Nicole. "All of Nicole's needs are being met and she is thriving in this home." (Exhibit 2, 4.)
5. The age of each child:
Nicole is three years old.
6. The efforts each parent has made to adjust his or her circumstances, conduct or conditions to make it in the best interests of the children to return home in the foreseeable future.
As set forth throughout this memorandum of decision and in the evidence, the biological father has not been able to adjust or improve his circumstances, conduct or conditions to enable him to have meaningful contact with Nicole and to make it in the best interest of Nicole to have such contact with or to reside with such biological father in the foreseeable future.
As set forth throughout this memorandum of decision and in the evidence, the mother has not been able to adjust or improve her circumstances, conduct or conditions to enable her to make it in the best interest of Nicole to be placed in her home in the foreseeable future.
7. The extent to which a parent has been prevented from maintaining a meaningful relationship with the children by the unreasonable act or conduct of the other parent of the children, or the unreasonable act of any other person or by the economic circumstances of the parent.
There was no evidence presented that the father has been prevented from maintaining a relationship with Nicole for any reasons other than his personal circumstances, conditions, limitations or choices.
Such father did not provide specific information concerning his current or past economic circumstances.
There was no evidence presented that the mother has been prevented from maintaining a relationship with Nicole for any reasons other than her personal limitations and circumstances.
Such mother did not provide specific information concerning her current or past economic circumstances.
WITH RESPECT TO THE FATHER OF NICOLE, DCF HAS PROVED, BY CLEAR AND CONVINCING EVIDENCE, THE GROUND A, B AND D ALLEGATIONS OF ITS TERMINATION OF PARENTAL RIGHTS PETITION.The court finds that DCF has alleged and proved, by clear and convincing evidence, that
(1) this court has jurisdiction over the matter and the parties, and DCF has made reasonable efforts to locate each parent;
(2) there is no other action pending in any other court affecting custody of Nicole known to this court. Neither biological parent has claimed to be affiliated in his or her lineage with any Native American tribe;
(3) on September 25, 2007, Nicole was adjudicated neglected and by way of disposition she was committed to the care, custody and guardianship of DCF, which commitment currently remains in effect;
(4) prior to filing its August 19, 2008, termination petition, DCF was willing to make reasonable efforts to reunify the father with Nicole through offers of and provision of services, but such father neither maintained regular contact with DCF, demonstrated interest in or was able to make himself available for the provision of reunification services, such father is and was unable or unwilling to benefit from reunification efforts and such efforts are not required;
General Statutes § 17a-112(j) provides that a court in a TPR proceeding must find that DCF has made reasonable efforts to reunify a parent and child unless the court ". . . determines at trial on the petition, that such efforts are not required . . ." See page 3 fn 2 and page 8 fn 4, supra. Notwithstanding this finding, DCF through the end of the trial did make efforts reasonable under the circumstances of the father's continuing criminal involvement in Texas to identify service providers or sources of information about services in Texas.
(5) on April 9, 2009, in the Superior Court for Juvenile Matters, Child Protection Session at Middletown (Baldwin, J.), the mother decided to offer her written consent to the termination of her parental rights to Nicole. She was canvassed, and the court found her consent to be knowingly, voluntarily and intelligently made by her with the adequate advice and the effective assistance of her counsel, and the court accepted such written consent;
(6) Nicole has been abandoned by the father in the sense that he has failed to maintain a reasonable degree of interest, concern or responsibility as to her health, safety and welfare;
Despite DCF's allegation of multiple adjudicatory grounds in the TPR petition, in the adjudicatory phase the petitioner must prove only one of such grounds by clear and convincing evidence:
"A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition . . . In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights [under § 17a-112(j)] exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child." (Internal quotation marks omitted.) In re Trevon G., 109 Conn.App. 782, 787-88, 952 A.2d 1280 (2008).
In re Janazia, 112 Conn.App. 69, 81-82 (2009).
(7) because of the father's behavior, continuing problems and issues set forth in this memorandum of decision and otherwise in the evidence, (i) after the on September 25, 2007, neglect adjudication, (ii) prior to the filing of the August 19, 2008, TPR petition and
(iii) thereafter through the April 14, 2009, date of the TPR hearing, the father failed to achieve the degree of personal rehabilitation that:
(a) encouraged the belief that prior to the filing of the TPR petition,
(b) would encourage the belief that within a reasonable time after the filing of such petition, or
(c) would encourage the belief, within a reasonable time in the future, considering Nicole's age, past and current circumstances and needs and the father's circumstances, including but not limited to his continuing criminal, substance abuse and transience issues, he could assume a position in Nicole's life as a responsible parent providing an environment that was free of physical violence, free of emotional, educational and medical neglect, and that provided for and insured the health, safety and welfare of Nicole; and thus the level of rehabilitation (if any) the father has achieved falls short of that which would encourage a belief that at some reasonable future date he can assume a responsible parental position in Nicole's life;
(8) the father has no ongoing parent-child relationship with Nicole, which means the relationship that ordinarily develops as a result of a parent having met on a day-to-day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of Nicole; and
DCF has thus proved, as to the father, by clear and convincing evidence, the Ground A, B and D allegations of its TPR petition.
THE BEST INTEREST OF NICOLE:
The court has considered the best interest of Nicole. The court has considered whether it is in the best interest of Nicole to be returned to the mother or to initiate/reinitiate contact with the father, including whether the mother or the father reasonably could be expected and relied upon to provide the safe, secure, nurturing, stable and permanent environment idealized in the statutes and case law, and the court has considered Nicole's ". . . interests in sustained growth, development, well-being, and continuity and stability of [her] environment . . ." In re Ryan R., 102 Conn.App. 608, 625-26 (2007). Unfortunately for Nicole, each parent has been and currently is unable to provide her such safe, secure, nurturing, stable and permanent environment. The father moved to Texas in late August 2006, and he has not visited with Nicole since such move. He has continuing criminal, substance abuse and transience issues. On the other hand, in the care of the foster parents Nicole has established a strong bond with them and is thriving.
The court finds, by clear and convincing evidence, that it is in the best interest of Nicole and that it is necessary for her well-being, growth, development, safety, security, stability, continuity, consistency and permanency, that the rights of the biological father and the biological mother be terminated.
CONCLUSION AND ORDERS:
Having considered the evidence and the statutory, Practice Book and case law requirements, the court finds, by clear and convincing evidence:
(a) the mother, with adequate advice from and effective assistance of counsel, consented to the termination of her parental rights to Nicole;
(b) Nicole has been abandoned by the father in the sense that he has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of Nicole;
(c) the father 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 Nicole, he could assume a responsible position in the life of Nicole;
(d) the father has no ongoing parent-child relationship with Nicole, which means the relationship that ordinarily develops as a result of a parent having met on a day-to-day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of Nicole; and
(e) it is in the best interest of Nicole to terminate the parental rights of the mother and the father.
Accordingly, it is hereby ORDERED that the parental rights of the mother and the father to Nicole are hereby terminated.
The commissioner of the department of children and families is appointed as the statutory parent of Nicole. The initial status report concerning Nicole shall be submitted, as required, within thirty days hereof. Quarterly reports and annual permanency plans shall be submitted as required in accordance with statutory requirements, including those set forth in General Statutes § 17a-112(o).Judgment shall enter accordingly.