IN RE NOAH B.

Full title: IN RE NOAH B

Court: Connecticut Superior Court, Judicial District of Middlesex Child Protection Session at Middletown

Date published: Feb 16, 2005

2005 Ct. Sup. 2666 (Conn. Super. Ct. 2005)

Opinion

No. CP00-013544-A

February 16, 2005

MEMORANDUM OF DECISION

RUBINOW, JUDGE.

This memorandum of decision addresses a petition brought to terminate the parental rights (TPR) of Beth A. and Christopher B., the biological parents of Noah B., born August 27, 2000. The Department of Children and Families (DCF or department) filed the TPR petition at issue on June 25, 2003. The original TPR petition against Beth A. alleged her failure to achieve statutory rehabilitation; as she tendered a valid consent to TPR on January 20, 2004, the petition was amended to reflect this ground.² The TPR petition against Christopher B. alleges the grounds of abandonment, failure to achieve rehabilitation, and lack of an ongoing parent-child relationship. For the reasons stated below, the court finds all matters in favor of the petitioner, and terminates both respondents' parental rights.

2 Following the respondent mother's tender of consent to the TPR petition, neither she nor her counsel participated further in this matter. The court had reserved dispositional issues, however, for the trial of matters related to allegations against Christopher B.

Trial of this highly-contested matter took place on various dates during the spring and(summer of 2004; the trial continued in the fall of 2004 when the court (Rubinow, J.) found that the evidence should be opened to ensure that the interests of justice could be served, and that an appropriate opportunity was provided for the full implementation of General Statutes § 17a-112(p) when resolving the extant TPR issues.³ The petitioner, the respondent father and the child⁴ were vigorously represented throughout the relevant proceedings; their counsel submitted thorough and highly analytical briefs, and other appropriate communications which assisted the court in resolving the legal and factual issues presented at trial.⁵ The parties concur that Noah B. is an "Indian child" as contemplated by Practice Book Sec. 26-1. Accordingly, the Tribe's counsel also participated in the TPR proceedings.⁶

3 Section 17a-112(p) establishes that the separate provisions of the TPR Statutes "shall be liberally construed in the best interests of any child for whom a petition under this section has been filed."

4 In addition to the able legal representation provided to the child, Noah B.'s attorneys, as appointed, also ably served as his guardian ad litem (GAL). See, e.g., General Statutes § 46b-129a (appointment of counsel and guardian ad litem for minor child).

5 On October 19, 2004, Christopher B.'s counsel advised the court that the respondent father had elected to forego cross-examination of witnesses who had presented testimony on October 1, 2004. He wrote that the respondent father did "not wish to . . . present any further evidence in the termination of parental rights case involving his son Noah."

6 Practice Book Sec. 26-1, applicable in June 2003 when the TPR petition was filed, provides the following relevant definition: "(5) `Indian child' means an unmarried person under age eighteen who is either a member of a federally recognized Indian tribe or is eligible for membership in a federally recognized Indian tribe and is the biological child of a member of a federally recognized Indian tribe, and is involved in custody proceedings, excluding delinquency proceedings." (Amended June 24, 2002, to take effect January 1, 2003.) Prior to the amendment's effective date, Practice Book Sec. 26-1 provided, in pertinent part, that the term "(3) `Indian child' means an unmarried person under age eighteen who is either a member of an Indian tribe or is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe, and is involved in custody proceedings, excluding delinquency proceedings. Such custody proceedings are controlled by the substantive and procedural rules of the Indian Child Welfare Act of 1978." The commentary to Practice Book Sec. 26-1, as amended, fails to explain why the new rule eliminated the previous reference to the Indian Child Welfare Act of 1978 (ICWA). However, General Statutes § 46b-115c, effective July 1, 2000, still provided that "[a] child custody proceeding that pertains to an Indian child as defined in the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq., is not subject to this chapter to the extent that it is governed by the Indian Child Welfare Act."

The Child Protection Session of the Superior Court (CPS), Juvenile Matters, has jurisdiction over the pending case. Notice of this proceeding was provided in accordance with the applicable provisions of the Practice Book. No action is pending in any other court affecting custody of Noah B.

I. FACTUAL FINDINGS

The Court has thoroughly reviewed the TPR verified petition, the TPR social study⁷ and addendum, and the multiple other documents submitted in evidence which included: curriculum vitae; police reports; records of the Department of Public Safety; court records; reports of psychological evaluations; treatment providers' records; and DCF reports. The court has utilized the applicable legal standards in considering this evidence and the testimony of trial witnesses, who included: DCF workers, a foster care therapist; a court-appointed psychological evaluator, the child's foster mother, the child's treating psychologist, a member of the paternal family's Tribe, Christopher B.'s female companion, and a Connecticut State Trooper.⁸ No party requested the court to draw an adverse inference from Christopher B.'s failure to testify on his own behalf, and no such inference has been drawn. See generally In re Samantha C., 268 Conn. 614, 842 A.2d 1124 (2004). The court received a report from Noah's GAL by way of his sworn testimony at trial, subject to cross examination. See In re Tayquon H., 76 Conn.App. 693, 705-06, 821 A.2d 796 (2003). Upon deliberation, the court finds that the following facts were proven by more than clear and convincing evidence at trial.⁹

7 The Social Study for Termination of Parental Rights dated June 20, 2003 was submitted in evidence as Exhibit 1. See Practice Book § 35a-9.

8 "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); see also In re Hector L., 53 Conn.App. 359, 366, 730 A.2d 106 (1999). "The probative force of conflicting evidence is for the trier to determine . . . In re Ashley E., 62 Conn.App. 307, 316, 771 A.2d 160, cert. denied 256 Conn. 910, 772 A.2d 601 (2001)." In re Jonathon G., 63 Conn.App. 516, 528, 777 A.2d 695 (2001). "The trial court . . . is not bound by the uncontradicted testimony of any witness . . . and is in fact free to reject such testimony . . . The trier . . . has the right to accept part or disregard part of a witness' testimony." (Citations and question marks omitted.) In re Deana E., 61 Conn.App. 197, 208, 763 A.2d 45 (2000), cert. denied, 255 Conn. 941, 768 A.2d 949 (2001).

9 Additional facts will be referenced as necessary. In reaching these factual conclusions, the court has taken judicial notice of incontrovertible events in matters before the Superior Court which involved Noah and the respondents. In re Amanda A., 58 Conn.App. 451, 452-53, 755 A.2d 243 (2000); In re Jessica M., 49 Conn.App. 229, 233, 714 A.2d 64 (1998); C. Tait, Connecticut Evidence (3d.Ed. 2001) § 2.16.5, Judicial Proceedings and Records. Also, in reaching its factual conclusions, the court has relied upon both credible and reliable direct and circumstantial evidence, as it is entitled to do in both civil and criminal matters. "To be credible and reliable . . . evidence need not be direct. `[I]t does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence' (Internal quotation marks omitted.) State v. Webb, 75 Conn.App. 447, 451, 817 A.2d 122, cert. denied, 263 Conn. 919, 822 A.2d 244 (2003) . . .' There is no legal distinction between direct and circumstantial evidence so far as probative force is concerned . . . [I]t is the right and the duty of the [trier of fact] to draw reasonable and logical inferences from the evidence . . . In considering the evidence introduced in a case, [triers of fact] are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct . . . State v. Chapman, 46 Conn.App. 24, 34-35, 698 A.2d 347, cert. denied, 243 Conn. 947, 704 A.2d 800 (1997), cert. denied, 523 U.S. 1063, 118 S.Ct. 1393, 140 L.Ed.2d 652 (1998).' (Internal quotation marks omitted.) In re Carissa K., 55 Conn.App. 768, 783, 740 A.2d 896 (1999). Additionally, `[c]ourts must necessarily rely on circumstantial evidence in many cases and may draw reasonable and logical inferences from [the] facts existing prior to or subsequent to an event for the purpose of reaching a conclusion of fact. Shaughnessy v. Morrison, 116 Conn. 661, 664, 165 A. 553 (1933).' (Internal quotation marks omitted.) Garrett's Appeal from Probate, 44 Conn.Sup. 169, 186, 677 A.2d 1000 (1994), aff'd, 237 Conn. 233, 676 A.2d 394 (1996)." State v. $7379.54 United States Currency, 80 Conn.App. 471, 476-77 (2003).

I.A. PROCEDURAL HISTORY

Christopher B. was born on September 29, 1979. A Tribal member, he dropped out of school in the 11th grade. He has worked as a landscaper and in food service, but has had long periods of unemployment. He receives a regular financial stipend from the Tribe. Christopher B. admits to a long history of smoking marijuana. (Exhibits 1, 20.)

The union of Christopher B. and Beth A. produced one child, Noah B. born August 27, 2000. (Exhibit 1.) DCF and the court have been involved with Noah B. and his parents since the child was but a few months of age. Although he is only four and a half years old, Noah B. has been the subject of three separate ex parte Orders of Temporary Custody (OTC) issued by judges of the Superior. Court; he has been adjudicated a neglected child; and he has been committed to DCF's custody on multiple occasions. Noah B. has been in the care of DCF consistently since August 2002.

A review of the history of the child protection litigation will help place in context the significance of the TPR litigation at issue.¹⁰

10 In a termination action, "[b]ecause the parent-child relationship is at issue, all relevant facts and family history should be considered by the trial court . . . The parent-child relationship presents an ongoing dynamic that cannot be frozen in time. The entire picture of that relationship must be considered whenever the termination of parental rights is under consideration by a judicial authority." (Emphasis added.) In re Brianna F., 50 Conn.App. 805, 814, 719 A.2d 478 (1998).

I.A.1. THE FIRST OTC-NOVEMBER 7, 2000.

On November 3, 2000, when Noah B. was just over two months old, it came to DCF's attention that the child had sustained bruises to his head. DCF executed a 96-hour hold and took the child into its custody under the authority of General Statutes § 17a-101g. (Testimony of Anne B.) The department filed a neglect petition with the court, alleging that at the time Noah B. was being denied proper care and attention while in the care and custody of his parents; that he was permitted to live under conditions injurious to his wellbeing; that he was abused due to physical injuries inflicted by other than accidental means; and that he presented with injuries which are at variance with the history given of them. Specifically, the department alleged that at the time, Noah B. had bruises to his head and right ear which required medical attention; x-rays of the infant revealed a rib fracture whose etiology neither parent could explain; both parents had failed to protect son and had exposed him to domestic violence; and a physician had opined that bruises were the result of child abuse.¹¹

11 On February 24, 2001, Christopher B. was arrested and charged with Risk of Injury to a Minor in connection with an offense that ostensibly related to Noah B.'s identified injuries. On April 9, 2001, Christopher B. was convicted of the lesser offense of Reckless Endangerment, receiving a sentence of six months of incarceration, suspended, with one year of probation. (Exhibit 3.)

On November 7, 2000, the court (Mack, J.) granted DCF's application for an ex parte OTC, upon finding that the "child . . . is suffering from serious physical injury, or . . . is in immediate physical danger from [his] surroundings and [that] immediate removal from such surroundings is necessary to ensure the child's . . . safety." On that date, the court issued the first of five sets of specific steps for Christopher B. Among other things, those steps required Christopher B. to participate in counseling at US, a local social service agency; to refrain from substance abuse; to avoid criminal acts which would lead to involvement with the criminal justice system, and to visit the child as often as DCF permits. (Exhibit 15.)

The OTC allegations were litigated through a five-day trial at the Child Protection Session. At the conclusion of these proceedings on December 8, 2000, the court (Frazzini, J.) vacated the ex parte OTC then in effect, but ordered the child returned to the care of Beth A., alone. The court ordered that the child's contact with Christopher B. must be strictly limited and supervised by third parties: Judge Frazzini ruled: "Baby to have no contact w/father unless approved by DCF . . . Father's visitation — to be supervised. Tribe will be providing services to father. Tribe and father will arrange visitation for baby with father through tribal counsel."

On December 19, 2000, both Beth A. and Christopher B. tendered nolo contendere pleas to the pending neglect petition. Accepting these pleas, the court (Frazzini J.) adjudicated Noah B. to be a neglected child who had been living under conditions injurious to his well being at the time alleged. By agreement of the parties, no commitment was ordered for Noah B.; instead, the alternative disposition allowed the child to remain in his mother's custody with one year of protective supervision by DCF, as contemplated by General Statutes § 46b-129(j).¹²

12 General Statutes Sec. 17a-93(i) defines "Protective supervision" as being: "a status created by court order following adjudication of neglect whereby a child's place of abode is not changed but assistance directed at correcting the neglect is provided at the request of the court through the Department of Children and Families or such other social agency as the court may specify . . ."

On January 2, 2001, following the neglect adjudication, the court (Frazzini, J.) executed the second set of specific steps for Christopher B. Among other things, these steps required the respondent father to remain abstinent from drugs; undergo random drug testing; submit to substance abuse assessment and follow recommendations regarding treatment; participate in parenting and individual counseling to address issues related to domestic violence, anger management, parenting skills deficits, and substance abuse; and avoid further involvement with the criminal justice system. (Exhibit 16.)

I.A.2. THE SECOND OTC — FEBRUARY 6, 2002.

On February 2, 2001, just three months following the execution of the first OTC, DCF imposed another 96-hour hold upon young Noah. (Testimony of Anne B.) On February 6, 2002, the court (Mack, J.) executed a second ex parte OTC temporarily vesting Noah B.'s custody in DCF, upon findings that while the child was in the care and custody of mother, he was ". . . is in immediate physical danger from [his] surroundings and [that] immediate removal from such surroundings [was] necessary to ensure the child's . . . safety." At the time, DCF alleged that Christopher B. was whereabouts unknown, while the respondent mother was failing to attend to child's health needs. On that date, DCF also filed a Motion to Open and Modify the disposition of protective supervision disposition, moving the court to commit Noah B. to the department's custody.

The court (Mack, J.) imposed the third set of specific steps upon Christopher B. on February 6, 2001, consistent with the OTC of even date. Again, the court ordered the respondent father to participate in parenting and individual counseling to address his issues with domestic violence, anger management, parenting skills deficits, and substance abuse issues. Again, he was ordered to visit with Noah B. as often as DCF permits, to refrain from substance abuse and to eschew violations of the law. (Exhibit 17.)

On February 14, 2001, the court (Mack, J.) sustained the second OTC upon agreement of the parties. Noah B. remained in DCF's custody under this temporary order for seven months. On September 13, 2001, the court (Mack, J.) granted DCF's Motion to Open and Modify Disposition, and committed Noah B. to DCF's custody, so that the child remained in foster care.

Three months later, on December 12, 2001, Christopher B. filed a Motion to Revoke Commitment, seeking custody of his son. On January 3, 2002, the court (Mack, J.) imposed the fourth set of specific steps upon Christopher B. Among other things, these steps required the respondent father to participate in parenting and individual counseling; accept DCF's referral for Intensive Family Reunification Services; submit to random drug testing; refrain from substance abuse; avoid violations of the law; "Continue with services provided by the . . . Tribe Behavioral Health Center, which includes substance abuse counseling and parenting education counseling with Noah, and successfully attend every scheduled day and fully participate with Staff Mates RN during risk assessment and monitoring of parental skills and frustration levels." (Exhibit 18.) These steps explicitly indicate the court's continued concern that Christopher B. was not yet able or willing to meet his young son's needs, as they designated specific dates on which the respondent father was required to "[w]ork closely with Staff Mates RN and follow all directions and recommendations for proper parenting to ensure that Noah is safe from harm. Meet all of the basic needs of Noah." (Emphasis added.) (Exhibit 18.)

On March 5, 2002, after the child had spent over a year in DCF's custody, the court (Mack, J.) granted Christopher B.'s Motion to Revoke Commitment. Noah B. was placed in the respondent father's care, under DCF's protective supervision. (Testimony of Anne B.) In contrast to the order of December 2000, through which the court had ordered that the respondent mother provide sole care for Noah B., the March 2002 order established Christopher B. as the child's sole custodian, albeit DCF was to provide protective supervision for a period of six months. Judge Mack expressly ordered: "Sole custody granted to father . . . Court feels that best interest of the child is sole custody w/father, court reserves jurisdiction as to that issue until successful completion of spec. steps by mother." At the time, Christopher B. was living with his mother, Phyllis B. He informed DCF that he was receiving substance abuse treatment from Nick P., affiliated with his Tribe's Behavioral Health Services (Tribe's BHS). (Testimony of Anne. B.)

Christopher B. continued to use illegal drugs during the summer of 2002, notwithstanding the January 2001 specific steps that remained in effect, and notwithstanding his ostensible treatment through the Tribe's BHS. He repeatedly failed to attend any of the multiple hair tests DCF had scheduled for him in conformity with the specific steps. When Christopher B. finally deigned to cooperate with the department's efforts to assess his degree of abstinence, consistent with its protective supervision status, laboratory analysis establishes that in the weeks prior to mid-July 2002, he had used both amphetamine-related drugs and marijuana, substances which had not been prescribed for his use by a qualified health-care provider. (Exhibits 9, 21; Testimony of Anne B.)

During this period, the court became concerned with Christopher B.'s failure to comply with court orders regarding the status of the child. On July 31, 2002, the court (Mack, J.) found the respondent father to be "in contempt of this court . . ." (Exhibit 21.) Regarding Noah B.'s safety, the court (Mack, J.) then ordered: "Father is to keep his 11 foot python snake properly locked in accordance w/the state health and safety requirements." In addition, while the court permitted Noah B. to remain in the custody of Christopher B., DCF's protective supervision was extended "until further order of this court." (Exhibit 21.)

I.A.3. THE THIRD OTC — AUGUST 9, 2002. CT Page 2672

On August 9, 2002, approximately one week following the court's determination that Christopher B. was in contempt of court, the court (Foley, J.) granted a third ex parte OTC in DCF's favor; Noah B. was removed from his father's care, and was returned to the custody of the department. (Testimony of Anne B.) At that time, the court found that while Noah B. was in the care and custody of father, he "[was] in immediate physical danger from [his] surroundings and [that] immediate removal from such surroundings [was] necessary to ensure the child's . . . safety." The court file reflects that DCF raised specific issues concerning Christopher B.'s ability or willingness to provide a safe home for his son, alleging that the respondent father was using marijuana and other illegal drugs; that this "ongoing abuse of substances greatly impacts his ability to make sound and appropriate decisions" and that father "has exposed his son to inappropriate individuals who have extensive criminal histories as well as substance abuse issues."

I.B. EVENTS FOLLOWING THE OTC OF AUGUST 9, 2002.

On August 15, 2002, DCF filed a second Motion to Open and Modify disposition to commitment. On August 27, 2002, the third OTC was sustained by the agreement of the parties.

Also on that date, in connection with the third OTC, the court (Baldwin, J.) issued its fifth set of specific steps for Christopher B. Among other things, the court yet again ordered the respondent to participate in parenting and individual counseling to address his problems with anger management, substance abuse, and poor parenting skills. He was ordered to submit to random drug testing; to undergo substance abuse assessment and recommended treatment at NP, another community social service agency, where individual counseling was also available; to accept and cooperate with home visits by personnel from DCF's regional resource group professionals; to continue individual counseling through the Tribe; to participate in anger management counseling at OIC; to remain abstinent from substance abuse; and to avoid violation of the law. Christopher B. was specifically ordered to visit his son twice a week, with visits supervised by the foster parents, DCF or the Tribe. At this time, the court noted that Christopher B.'s substance abuse issues with alcohol were predominate, but that he remained involved with other illegal drugs, as well; the court expressly identified this substance abuse as a parenting deficit, ordering the respondent father to "Demonstrate complete abstinence from alcohol and drugs" as a part of the specific steps at issue. (Emphasis in the original.) (Exhibit 19; Testimony of Jennifer B.)

Christopher B. had commenced a romantic liaison with Melissa V.; their son Alexander V. was born on September 20, 2002. (Testimony of Melissa V.)

On March 13, 2003, seven months after DCF had regained custody of his son, Christopher B. filed a Motion for Transfer of Guardianship to the child's paternal grandmother, not to himself. This motion was denied (Mack, J.) upon the respondent father's failure to appear at the scheduled argument for this motion.

Christopher B.'s problems with substance abuse continued after the issuance of the third OTC. At 2:10 a.m. on December 3, 2002, Christopher B. operated a motor vehicle on a public street or highway while he was under the influence of alcohol or drugs; he was apprehended by local police and arrested for violation of General Statutes § 14-227a.¹³ (Exhibit 7.)

13 The court reaches the conclusion that Christopher B. was then operating a motor vehicle while under the influence of alcohol or drugs after drawing such "inferences from the evidence or facts established by the evidence [that] it deems to be reasonable and logical." (Internal quotations marks and external citation omitted.) State v. Leon-Zazueta, 80 Conn.App. 678, 685, 836 A.2d 1273 (2003), cert. denied, 268 Conn. 901 (2004). Thus, the court has drawn reasonable inferences from the reliable, consistent evidence indicating that the respondent father failed the lawfully administered field sobriety test; was noted to have a strong odor of alcoholic beverage on his breath; had been observed driving erratically, and refused to participate in a breath test. See General Statutes § 14-227a(e) (in criminal prosecution, adverse inference may be drawn from evidence indicating that an accused "refused to submit to a blood, breath or urine test requested in accordance with section 14-227b").

The TPR petition at issue was filed on June 25, 2003. On September 24, 2003, while the TPR petition was pending at CPS, the court (Lopez, J.) granted DCF's August 15, 2002 Motion to Open and Modify disposition, committing Noah B. to the custody of the department for the second time in his young life.

During late 2003, Christopher B. began residing together with Melissa V.¹⁴ Late on the evening of July 21, 2004, Christopher B. returned to their home in an extreme state of alcohol intoxication. He became angry over a relatively minor domestic incident; he then became verbally and extremely physically abusive to Melissa V., and violently impeded her efforts to contact the police, notwithstanding the fact that their son Alexander was upstairs at the time. During the incident, Christopher B. threw Melissa V. down on the couch, put his hands over her mouth and nose, and told her that only he would decide when their relationship would be ending. In his intoxicated state, he threatened "I'm going to kill you. You can't leave me." Melissa V. was able to leave the house with her child only when Christopher B. succumbed to the effects of his intoxication, and "passed out." (Exhibit A, 10/1/04; Testimony of Melissa V., Trooper M.)

14 The court has considered the relevant evidence of the respondent father's capacity to refrain from domestic violence as such a characteristic is a fundamental attribute of safe parenting practices. See In re Brianna F., supra, 50 Conn.App. 814.

When law enforcement agents were finally contacted, Christopher B. was uncooperative with the officers' efforts to rouse him from his stupor. The respondent father was arrested on site and charged with family violence crimes by way of Assault in the third degree, Disorderly Conduct, and Interfering with a 911 Call.¹⁵ (Exhibit 2, 10/1/04.) The criminal court provided Melissa V. with a Protective Order as the result of this incident. (Testimony of Melissa V.)

15 See P.A. 03-43, providing that effective October 1, 2003, "(a) A person is guilty of interfering with an emergency call, when such person, with the intent of preventing another person from making or completing a 911 telephone call or a telephone call or radio communication to any law enforcement agency to request police protection or report the commission of a crime, physically or verbally prevents or hinders such other person from making or completing such telephone call or radio communication. (b) Interfering with an emergency call is a class A misdemeanor."

I.C. NOAH B., THE CHILD

Noah B. was born on August 27, 2000. The first four and a half years of his life have been spent transitioning in and out of DCF's custody, sometimes cared for by his mother Beth A., and sometimes cared for by the respondent father.¹⁶ When Noah B. was but nine weeks old, the court ordered him to be placed in DCF's care from November 7, 2000 through December 8, 2000; at the conclusion of this period, he was returned to the care of his mother. Only visitation supervised by third parties was permitted for Christopher B. and his son at that stage of the proceedings. Less than two months later, on February 6, 2001, Noah B. was removed from mother's care for a second time; the child was again placed in the temporary custody of DCF. Noah B. remained in DCF's care until February 2002, when the department returned him to his father's care. The child lived with Christopher B. for approximately five months; however, on August 9, 2002, the court again removed the child from his biological parent's care, and placed him in DCF's custody. Since that date, Noah B. has never returned to the respondent father's care.

16 Each time he entered DCF's custody, Noah B. was placed with Kenneth and Kathy D., foster parents who stand ready and willing to adopt the child if he becomes available. (Exhibits 1, 2, 12; Testimony of Kathy D.)

Noah B. is without question a child with special emotional needs that must be addressed by his caretakers in order to promote his capacity to grow and develop in a healthy manner. (Exhibit 13; Testimony of Kathy D.) At the age of two, following the third OTC, Noah's foster parents identified significant negative aspects of his behavior. Noah was continually very active unless he was sleeping, and often angry and frustrated. He demonstrated violent and aggressive tantrums each day, sometimes lasting up to four days in length; in these tantrums, he manifested behaviors such as "kicking, biting, head butting, punching and screaming without provocation." (Exhibit 12.)

In October 2002, DCF referred Noah and his foster parents to behavioral health services through the FAST program; in an effort to maintain a stable, nurturing environment for this child who "did not like to be held or nurtured" despite his very young age.¹⁷ (Exhibit 12, Testimony of Ruth E.) To enhance Noah B.'s status, the FAST clinicians recommended increasing the child's time spent in day care; respite services; and specific parenting techniques designed to quiet the child's tantrum behaviors. (Exhibits 11, 12.) On February 11, 2003, Noah B. commenced "play therapy" with Judy A., a highly educated, skilled, credentialed and experienced therapist who has long provided direct clinical behavioral health services for members of the Tribe and their families. (Exhibits 1, 5.) Kathy and Kenneth D. responded well to the parenting instructions provided by FAST, and "[a]fter some time they found significant improvement in Noah's behavior. He stopped hitting them all together, and was able to receive physical comfort." (Exhibit 12.)

17 FAST is an acronym for Foster and Adoptive Support Team. (Exhibit 12.)

However, on October 27, 2003, DCF again referred three-year-old Noah and his foster parents to the FAST program as the child had begun to show "aggressiveness and inability to calm down after visitation with his biological father."¹⁸ (Exhibit 13.) FAST provided parenting instruction and the foster parents responded by increasing their soothing activities with the child, utilizing "close proximity parenting strategies." With the foster parents' implementation of FAST's recommendations "Noah began to attach; he stopped running off in public; he began to cling to [Kathy D.], and he stopped his aggressive behavior towards others." (Exhibit 13; Testimony of Ruth E.)

18 The petitioner produced more than clear and convincing evidence to establish that although Christopher B. scarcely visited Noah B. from August of 2002 through the first part of September 2003, father and son visits did take place on September 9, September 30, and October 7, 2003, after the TPR petition was filed. (Exhibit 4; Testimony of Jennifer B.) Noah B.'s conduct was age-appropriate and not aggressive prior to the reinstitution of visits. Thus, there is at least a strong temporal relationship between the regression noted in Noah B.'s behavior, and the respondent father's visits during the fall of 2003. (Testimony of Ruth E.) DCF suspended visits on November 4, 2003. (Exhibit 4.) This suspension of visitation was ratified by the court after hearing (Lopez, J.) through orders issued on January 20, 2004.

In February 2004, at DCF's referral Noah B. came under the care of Elizabeth K., Ph.D., a skilled and experienced clinical psychologist who practices psychotherapy with children and families. She has a self-identified "expertise" in work with RAD, which a psychiatrist had diagnosed in Noah B. She treats the child for this condition, as well as for the indications of Post Traumatic Stress Disorder (PTSD) that she has discerned through her work with child.¹⁹ As a result of these conditions, the child is unable to calm himself down by accessing his caretakers; he may have difficulty in developing healthy relationships; and manifest reduced empathy and ambivalence toward others. Noah B. is also hyper-aroused and hyper-vigilant in an unconscious effort to defend himself from perceived threats from the environment that are as benign as a creaking floorboard, or questions about where to go for dinner. (Exhibit 14; Testimony of Kathy D., Dr. Elizabeth K.) The child's behaviors present a challenge for even the most talented and devoted of parents.

19 See In re Joshua S., 260 Conn. 182, 212 n24, 796 A.2d 1141 (2002) (defining RAD). As Dr. Elizabeth K. explained, RAD occurs when a child experiences repeated changes in caregivers or caregiving style. PTSD develops when a person has an experience that causes him to react with intense fear and horror. (Testimony of Dr. Elizabeth K:)

I.D. PSYCHOLOGICAL EVALUATION

On February 4, 2003, court-ordered clinical and interactional evaluations of Christopher B. and his son were performed by Mary Cheyne, Psy.D.²⁰ Dr. Cheyne cogently concluded that Christopher B. minimized his problems with domestic violence and substance abuse, although "[w]ith regard to difficulties with the criminal justice system, [he] acknowledged being arrested many times. He added, `I've done a lot of dumb s____t. I still do a lot of s____t.'" (Exhibit 10.) Dr. Cheyne noted that Christopher B.'s psychological profile then indicated "that he is satisfied with himself and sees little need for changes in his behavior. As such his prognosis for successfully participating in programs aimed at improving his behaviors is not optimistic." (Exhibit 10.) Overall, Christopher B. "attempted to present himself in an overly favorable light" during this evaluation. (Exhibit 10.) Dr. Cheyne found that the respondent father was "invested in denying negative aspects of his life or his situation." such that he significantly minimized the extent of his history of substance abuse, and "was untruthful in his report about recent/current participation in therapy." (Exhibit 10.).

20 The highly skilled and experienced clinical psychologist also performed evaluations of Noah B. and his paternal grandmother on this occasion. (Exhibits 10, 20.)

At the time of this evaluation, Noah B. was approximately two and a half years old. He had lived with Christopher B. from March through July 2002, but had been in foster care for over six months when Dr. Cheyne performed her father-son interactional evaluation. While Noah B. was somewhat "shy" at the commencement of this assessment, Dr. Cheyne observed a degree of "easiness about their interaction." (Exhibit 10.)

II. INTRODUCTION TO ICWA'S GENERAL EFFECT UPON TPR ADJUDICATION AND DISPOSOTION

Because Noah B. is an Indian child, and because no appellate level decision yet addresses the interface of state and federal termination of parental rights law for such a child, this court has been called upon to assess the applicable adjudicatory and dispositional determinations aspects of Connecticut's TPR scheme; and also of the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et seq., as amended. The court finds no conflict between the state and federal provisions at issue. Accordingly, the court in reaching its decision herein, the court has applied both the statutory requirements of § 17a-112(j) and has further adhered to ICWA's requirements as set forth in 25 U.S.C. § 1912(d) and (f). Specifically, in addition to measuring the petitioner's compliance with Connecticut's TPR statutes, the court has also assessed whether she has presented evidence that establishes, "beyond a reasonable doubt including testimony of qualified expert witnesses, that the continued custody of the child by the parent of Indian custodian is likely to result in serious emotional or physical damage to the child."²¹ 25 U.S.C. § 1912(f).

21 The ICWA legislation does not specify the nature or subject matter of the expert's testimony. However, 25 U.S.C. § 1912(f) operates to eliminate the possibility that parental rights to an Indian child will be terminated based only upon evidence adduced through non-expert witnesses, such as lay persons who testify concerning observations of the respondent's parenting deficits, or inexperienced social workers in the direct employ of the petitioning governmental agency.

The court further finds that notwithstanding the respondent father's claim to the contrary, "ICWA does not require that [Connecticut's] statutory grounds for termination of parental rights be proven beyond a reasonable doubt. The ICWA does not preempt any state law grounds for termination of parental rights or impose a single burden of proof on all supporting findings in termination proceedings in which it applies. On the contrary, the ICWA expressly provides for continued viability of state laws that impose differing standards of protection to the rights of the parent or Indian." K.E. v. State of Utah, 912 P.2d 1002, 1004 (Utah App. 1996).

Thus, in conformity with both the letter and spirit of the Connecticut statutes, Practice Book Provisions, and federal legislation at issue, the court finds that, as a matter of law, DCF must prove the allegations brought under § 17a-112(j)(1) and (2) by clear and convincing evidence, as a predicate to prevailing on the TPR petition. The court further finds that, as a matter of law, DCF must prove one of the alternative allegations brought under § 17a-112(j)(3)(A), (B) and/or (D) by clear and convincing evidence, as a predicate to prevailing on the TPR petition. The court also concludes that "[t]he ICWA requires a specific finding for termination proceedings in addition to those required by state law and imposes a separate burden of proof for that finding."²² (Emphasis added.) K.E. v. State of Utah, supra, 912 P.2d 1004. Here, as in other "cases in which the ICWA applies, petitioners must prove the state law grounds for termination by clear and convincing evidence . . . and must prove the additional federal requirements beyond a reasonable doubt, see 25 U.S.C. § 1912(f)(1994). The requirements for termination under state law and the additional requirement under federal law must each be met; however, those requirements are met under separate burdens of proof." (Emphasis added.) Id., 1005.

22 "`Clear and convincing proof denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution . . . [The burden] 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.' Shelton v. Statewide Grievance Committee, 85 Conn.App. 440, 443-44, 857 A.2d 432, cert granted on other grounds, 272 Conn. 914 (2004)." Ansell v. Statewide Grievance Committee, 87 Conn.App. 376, 383 (2005).

In this particular matter, any of the parties may argue that the court must apply the enhanced burden of proof to all elements presented by the department's TPR petition, as the litigants had stipulated at trial to a burden of proof beyond a reasonable doubt.²³ However, adherence to the higher burden of proof would prohibit a determination that DCF has proved the allegations of the petition by "clear and convincing evidence" as contemplated by § 17a-112(j).

23 The trial record clearly reflects that on the second day of trial, the parties had stipulated that the petitioner was charged with the burden of proving all material allegations of the TPR petition by evidence beyond a reasonable doubt. On May 27, 2004, the trial court (Rubinow, J.) informed the parties that the burden of proof to be applied "is evidence beyond a reasonable doubt as to the issue of whether the continued custody of an Indian child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child" but leaving the department's burden of proof on all other allegations at the level of clear and convincing evidence, as contemplated by § 17a-112(j). (Emphasis added.) Memorandum of Hearing, March 30, 2004. In a case such as this, the court is clearly bound by stipulations the parties may reach as to questions of fact. See, e.g., Highgate Condominium Assn. v. Watertown Fire Dist., 210 Conn. 6, 20 n. 6, 553 A.2d 1126 (1989); Pyne v. New Haven, 177 Conn. 456, 464, 418 A.2d 899 (1979); C. Tait J. LaPlante, supra, 6.7(d). "Indeed a court does not have discretion to disregard the factual stipulations of parties without stating on the record its decision to do so and the reasons for that decision, and must then offer the parties the opportunity to present evidence on the factual issue." (Emphasis added.) Izard v. Izard, Superior Court, Docket No. FA 01-0727767-S (Jan. 29, 2004; Grundel, J.) (36 Conn. L. Rptr. 483), citing Cupe v. Commissioner of Correction, 62 Conn.App. 262, 269, 791 A.2d 614 (2002), cert. denied, 260 Conn. 908, 795 A.2d 544 (2002). However, "[w]hile courts are ordinarily bound by the [factual] stipulations of the parties made in the course of their litigation, that rule cannot be invoked to bind the court in its determination of questions of law which is exclusively a judicial function, and virtually all jurisdictions recognize that stipulations as to the law are invalid and ineffective. 73 Am.Jur.2d, Stipulations, § 5(1974). `Relief from erroneous stipulations is especially favored where the mistake made concerns a legal conclusion [because issues] of law are the province of courts, not of parties to a lawsuit, individuals whose legal conclusions may be tainted by self-interest . . .'; TI Federal Credit Union v. Delbonis, 72 F.3d 921' (1st Cir. 1995); and accordingly it has been held that it is improper for the parties or their attorneys to determine by agreement questions as to the proper construction or application of a statute. Id.; Pyne v. New Haven, 177 Conn. 456, 464-65 (1979)." (Emphasis added.) Roaring Brook Campground Assoc. v. RBA, Superior Court, Docket No. CV-96-0062251-S (Sep. 9, 1998; Hammer, J.).

See, e.g., State v. Atkinson, 46 Conn.Sup. 130, 132, 137, 740 A.2d 991 (1999). Given the circumstances of this case, presenting issues relating to an Indian child whose best interests must be guarded by the court, as required by § 17a-112(p), and for whom 25 U.S.C. 1912(f) is expressly applicable, it would be unjust and unreasonable to so limit the court.²⁴

24 Christopher B. would have the court adopt the reasoning utilized by a sister trial court in In re Makaila A., Superior Court, judicial district of New London, Juvenile Matters at Waterford, docket No. K09-CP02-008567-A (Jongbloed, J., Dec. 19, 2003). The court declines this invitation, finding that although the issue has not yet been addressed or resolved by any identified Connecticut appellate decision, neither state nor federal law mandates the implementation of the "beyond a reasonable doubt" burden of proof in termination of parental rights matters for Indian children, except insofar as the specific elements of U.S.C. § 1912(f) are concerned. While "[i]t is axiomatic that a trial court is bound by Supreme Court precedent; Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 195, 676 A.2d 831 (1996); it is equally fundamental that a trial court is not constrained to apply the factual or legal determinations made by another trial court. See generally, Johnson v. Atlantic Health Services, 83 Conn.App. 268, 277, 847 A.2d 1115 (2004) ("normally [the Appellate Court does] not look to the opinions rendered by the Superior Court as authority); Waterbury Equity Hotel, LLC v. City of Waterbury, 85 Conn.App. 480, 489 (2004) (examining the "law of the case" theorem). Under the circumstances of the present case, this court acknowledges and adopts the more-reasoned construction of any apparent conflict between state and federal burdens of proof is articulated in K.E. v. State of Utah, supra, 912 P.2d 1004. Only the Utah protocol is fully consistent with both the spirit and letter of the federal law at issue, and with the edict of General Statutes § 17a-112(p). See footnote 2.

III. ADJUDICATION

In the adjudicatory phase,²⁵ the court has considered the evidence related to circumstances and events prior to June 25, 2003, the date upon which the TPR petition against Christopher B. was filed, insofar as the allegations pertaining to abandonment are concerned.²⁶ With regard to the allegations of failure to achieve rehabilitation and lack of an ongoing parent-child relationship, the court has also considered the evidence and testimony related to circumstances occurring through the close of evidence during the summer and fall of 2004.²⁷

25 "Under § 17a-112, a hearing on a petition to terminate parental rights consists of two phases: the adjudicatory phase and the dispositional phase. During the adjudicatory phase, the trial court must determine whether one or more of the . . . grounds for termination of parental rights set forth in [§ 17a-112(j)] exists by clear and convincing evidence. The commissioner . . . in petitioning to terminate those rights, must allege and prove one or more of the statutory grounds." (Citation omitted.) In re Quanitra M., 60 Conn.App. 96, 102, 758 A.2d 863, cert. denied, 254 Conn. 903, 762 A.2d 909 (2000); see also In re Brea B., 75 Conn.App. 466, 469-70, 816 A.2d 707 (2003).

26 Practice Book § 35a-7(a) provides that "[i]n 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."

27 The commentary to Practice Book § 35a-7 elucidates subsection (a) of the Rule as follows: "Post-adjudicatory evidence may be considered in the adjudicatory phase in a termination of parental rights case alleging the grounds of no ongoing parent-child relationship or failure to rehabilitate. In re Amber B., 56 Conn.App. 776 [, 746 A.2d 222] (2000); In re Stanley D., 61 Conn.App. 224 [230, 763 A.2d 83] (2000); In re Latifa K., 67 Conn.App. 742 [,789 A.2d 1024] (2002)."

Upon review, as discussed below, the court has determined that statutory grounds for termination exist as to Christopher B. As Beth A. has consented to TPR, the court does not here address adjudicatory issues related to the department's claims concerning her parenting status.

III.A. LOCATION AND REUNIFICATION EFFORTS

As a predicate to granting a petition to terminate parental rights, the court must find by clear and convincing evidence that "DCF has made reasonable efforts to locate the parent and to reunify the child with the parent, unless the court finds in [the TPR] 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 [permanency planning] hearing . . . that such efforts are not appropriate . . ."²⁸ General Statutes § 17a-112(j)(1); see also In re Ebony H., 68 Conn.App. 342, 348, 789 A.2d 1158 (2002); In re Amneris P., CT Page 2679 66 Conn.App. 377, 386, 784 A.2d 457 (2001). Applying the requisite legal standards and construing the statute in accordance with § 17a-112(p), the court finds this issue in favor of the petitioner. She has proved by more than clear and convincing evidence that Christopher B. was unable or unwilling to benefit from the reasonable reunification efforts contemplated by § 17a-112(j)(1). In re Ebony H., supra, 68 Conn.App. 348. She has also met her burden of proving by more than clear and convincing evidence that the reunification efforts made by DCF were reasonable given the underlying circumstances in this case, including Christopher's long history of parenting skills that were impaired as a result of alcohol and drug abuse, domestic violence, and unmet personal mental health issues.

28 "Although `[n]either the word reasonable nor the word efforts is . . . defined by our legislature or by the federal act from which the requirement was drawn . . . [r]easonable efforts means doing everything reasonable, not everything possible.'" (Internal quotation marks omitted, external citation omitted.) In re Mariah S., 61 Conn.App. 248, 255, 763 A.2d 71 (2000), cert. denied, 255 Conn. 934, 767 A.2d 105 (2001). "[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." (Internal quotation marks omitted.) In re Hector L., CT Page 2713 53 Conn.App. 359, 372, 730 A.2d 106 (1999). Only "reasonable" efforts are required as "[i]t is axiomatic that the law does not require a useless and futile act." (Citation omitted.) In re Anthony B., 54 Conn.App. 463, 476, 735 A.2d 893 (1999).

A review of the evidence impels this conclusion. As a part of its reasonable efforts to promote reunification of the family, it is uncontroverted that DCF provided Christopher B. with appropriate family treatment and permanency plans, case management services and administrative case reviews; and coordination of service referrals with the Tribe.²⁹ (Exhibit 1; Testimony of Anne B.) DCF appropriately investigated and considered relatives whom the respondents suggested as placement resources, including the paternal grandmother, Phyllis B.; the maternal grandmother, Laura M.; and the respondent father's sister, Marguerite G.³⁰ The department earnestly coordinated efforts with the Tribe to find a tribal placement, without success.

29 Christopher B. has provided no basis, in law or reason, upon which the court could conclude that in providing reunification services, DCF is obligated to duplicate services being provided to a parent through a coordinate agency such as the Tribe. See generally In re Roshawn R., 51 Conn.App. 44, 56-57, 720 A.2d 1112 (1998). It was through the Tribe that Christopher B. has access to substance abuse counseling services through the Tribe's BHS. (Testimony of Anne B.) The more than clear and convincing evidence in this case establishes that Christopher B. consistently informed DCF and the court that he was engaged in counseling through the Tribe, although in fact he made little if any use of the Tribe's BHS. For instance, the fourth set of specific steps, issued on January 3, 2002, specifically referenced Christopher B.'s obligation to "continue" with the multifaceted counseling services provided by the Tribe's BHS. (Exhibit 18.) Other evidence expressly reports the respondent father's claims that he was receiving substance abuse treatment from Nick P. at the Tribe's BHS, although those claims could not be verified. (Testimony of Anne B.) See Part I.A.2. In September 2003, Christopher B. told his family DCF social worker that he was engaged in parenting education with Judy A. (Testimony of Jennifer B.) "Continuing" such services implies that Christopher B. had already commenced the counseling process, an implication which is not borne out by the abundant evidence indicating that the respondent father consistently failed to cooperate with treatment services from the Tribe.

30 On March 19, 2003, the court (Mack, J.) denied Phyllis B.'s motion to intervene in the child protection litigation.

In addition, the more than clear and convincing evidence presented at trial establishes that DCF's provision of reunification efforts for Christopher B. was reasonable under the circumstances of this case. From January through April 2002, DCF provided Intensive Family Preservation services along with the assistance of the Visiting Nurse service, to assist Christopher B. and his young son in making the transition involved in Noah B.'s return to the home. During this period, DCF also referred Christopher B. to a parenting education program at MP, a community service agency addressing the needs of children and their families. (Testimony of Anne B.)

In late August 2002, DCF scheduled multiple appropriate services to meet the respondent father's needs, including an opportunity to participate in a twenty-six-week specialized Program for Anger Management at the OIC, a local social service provider; and out-patient substance abuse evaluation and counseling at NP, a dedicated drug treatment program. (Testimony of Anne B.)

In mid-October 2002, Christopher B. advised DCF that he was engaged in multiple relevant services. He informed the family's social worker that he was receiving anger management training at OIC, having substance abuse treatment at NP, and that he was engaged in parenting education at the Tribe's BHS. However, DCF subsequently learned that the respondent father had not utilized the services available at OIC or NP, and that he was not consistent in attending Mohegan Behavioral Health's parenting classes. (Testimony of Jennifer B.)

In February 2003, DCF again offered to link Christopher B. up with substance abuse treatment providers in the community. The respondent father declined, indicating that he wanted to receive his drug treatment through the Tribe's BHS. Again, however, in May 2003, Christopher B. admitted that he was not accessing parenting education services, substance abuse treatment, or anger management classes through any service providers. (Testimony of Jennifer B.)

The department had also referred Christopher B. to parenting training through Judy A.'s work for the Tribe. In addition, to enhance the child's development, ease his emotional fragility and to thereby increase the likelihood of reunification with Noah B., DCF referred the child to play therapy with Judy A., day care, and to Birth to Three services. (Exhibit 1; Testimony of Jennifer B.) Surpassing the clear and convincing standard, the evidence establishes that from August 2002 when Noah B. entered foster care for the third time, though fall 2003 when visits were suspended as recommended by the child's mental health care provider, DCF provided Christopher B. with weekly opportunities for supervised visitation with his son. By that same standard, however, the evidence also reflects that Christopher B. attended visits on only a scarce and sporadic basis, thus independently countermining the department's active efforts to promote father-son reunification as required by the concurrent planning aspects of Connecticut's child protection legislation. See General Statutes § 17a-110a (guidelines for DCF's involvement in concurrent permanency planning); In re Jonathan M., 255 Conn. 208, 241, 764 A.2d 739 (2001).

Moreover, reviewing the evidence in its totality, it is overwhelmingly apparent that Christopher B. has remained throughout unable and vociferously unwilling to reap any measurable benefit from reasonable, active reunification efforts. In this case, DCF's reunification efforts were thwarted by Christopher B.'s own denial of his substance abuse, mental health, and oppositional behaviors, "not the conduct of the department." In re Amelia W., 62 Conn.App. 500, 506, 772 A.2d 619 (2001); see In re Ebony H., 68 Conn.App. 342, 350, 789 A.2d 1158 (2002). The evidence establishes beyond a reasonable doubt that despite DCF's referral to NP for substance abuse evaluation and treatment, and for access to individual counseling, Christopher B. failed to complete recommended testing, and failed to participate in treatment. During the early summer of 2002, Christopher B. repeatedly failed to attend many of the multiple hair tests DCF had scheduled for him, as required by the specific steps. (Testimony of Anne B.) On September 27, 2002, Christopher B. admitted that he had not commenced his substance abuse treatment or anger management counseling, and clearly stated that he was unwilling at the time to comply with recommended services. (Exhibit 23.)³¹ The respondent father failed to attend weekly anger management sessions scheduled through the OIC. He failed to attend individual counseling as recommended, although he attempted to lead others, including the court-appointed psychological evaluator, to the conclusion that he had, indeed, attended therapy sessions with Judy A. and/or Nick P. (Exhibit 1; Testimony of Jennifer B.)

31 Upon receipt, Exhibit 23 was replete with redactions, and the bottom of one page had been cut off. (Exhibit 23.)

Finally, as fully discussed in Part III.B.2, Christopher B.'s personality style and psychological profile are such that he continues to deny that he has any need for services to address his mental health, substance abuse, or social conduct issues. The court received more than clear and convincing evidence through Dr. Cheyne, the court-appointed psychological evaluator, to support the finding that this ingrained denial is not likely to become modified or lessened unless the respondent father participates in long-term therapy, which he is unwilling to do. (Testimony of Dr. Cheyne.) Due to his inability or unwillingness to participate in treatment programs extended by DCF or the Tribe, the respondent father continues to lack awareness that his mental health issues, drug and alcohol use impair his capacity to lead a lawful existence, interfere in his relationships with his domestic partners, and prevent him from developing the stable lifestyle that is intrinsic to serving as a responsible parent for young Noah B.

Christopher B.'s fundamental unwillingness or inability to benefit from reasonable reunification efforts is perhaps most remarkably demonstrated through his dismal pattern of accessing opportunities to visit with his son while Noah B. has been in foster care. While insisting at the TPR trial that he has a great interest in providing custodial care for his son, Christopher B. failed to visit with Noah B. on all but a sporadic basis even when he was not charged with the burden of supervising and safeguarding a dependent child, and when he was not constricted by employment-related scheduling problems. The inconsistency of the respondent father's contacts with Noah B. from August 2002 through October 2003 more than clearly and convincingly demonstrate that Christopher is simply unable or unwilling to make even the most humble modifications in his own life, so as to render himself able to benefit from the visitation offered to him, a critical element in the arsenal of available reunification efforts.³² Rather than attend visits, and accommodate his young child's nascent desire to be raised by his biological parents, Christopher B. put his own needs first. It was Christopher B.'s responsibility, as an adult, to give Noah B.'s "interest top priority over [his] own emotional objectives . . ." In re Luke, 20 Conn.Sup. 316, 326-27, 498 A.2d 1054 (1985) (Brenneman, J.). The respondent father's inability or unwillingness to do so, insofar as visits with Noah B. were concerned, more than clearly and convincingly establishes his inability or unwillingness to achieve any measurable degree of benefit from such reasonable reunification efforts as are contemplated by the statute.

32 In reaching this determination, the court has remained mindful that during the time in question, Christopher B.'s driving privileges were under suspension due to his repeated arrests for driving under the influence of alcohol or drugs. However, the evidence more than clearly and convincingly establishes that Christopher B. never requested that the department assist him with transportation to visits; and that if he had asked, transportation would have been provided for the purpose of promoting the biological family's integrity. (Testimony of Jennifer B.)

As the more than clear and convincing evidence establishes that the department made reasonable and active efforts to provide services to address the respondent father's rehabilitation needs, but that Christopher B. remains unable or unwilling to timely benefit from any reunification services contemplated by § 17a-112(j)(1), the petitioner has met her burden of proof on this issue.³³ See In re Amneris P., supra, 66 Conn.App. 385 (parent must respond to reunification efforts in a timely way so as to assist the child).

33 Christopher B. may attempt to argue that DCF failed to undertake reasonable efforts at reunification under the analysis utilized by In re Vincent B., 73 Conn.App. 637, 809 A.2d 1119 (2002), cert denied, 262 Conn. 934, 815 A.2d 136 (2003). Salient factual distinctions however, render the Vincent B. result inapposite to the present matter. Unlike Christopher B., the parent in Vincent B. had successfully participated in "a long-term in-patient substance abuse treatment program to treat a lengthy alcohol addiction." In re Vincent B., supra, 73 Conn.App. 642. He had apparently achieved functional recovery, as in that matter "[t]he record shows no evidence of relapses." Id., 644. In this case, on the other hand, there is no reliable evidence establishing that Christopher B. has ever completed any treatment program designated for his substance abuse or domestic violence issues, or directed at improving his parenting techniques. In the absence of such evidence, the principles of Vincent B. are inapposite to the present case.

III.B. STATUTORY GROUNDS FOR TERMINATION III.B.1. ABANDONMENT — § 17a-112 (j)(3)(A)

The petitioner alleges that Christopher B. abandoned Noah B. within the meaning of General Statutes § 17a-112(j)(3)(A).³⁴ Applying the requisite legal standards³⁵ and construing the statute in accordance with § 17a-112(p), the court finds this matter in favor of the petitioner.

34 Section 17a-112(j)(3)(A) authorizes termination of parental rights for "[t]he child [who] has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child . . ."

35 "Abandonment focuses on the parent's conduct . . . Attempts to achieve contact with a child, telephone calls, the sending of cards and gifts, and financial support are indicia of interest, concern or responsibility for the welfare of a child . . . Abandonment occurs where a parent fails to visit a child, does not display love or affection for the child, does not personally interact with the child, and demonstrates no concern for the child's welfare . . . Section 17a-112 . . . does not contemplate a sporadic showing of the indicia of interest, concern or responsibility for the welfare of a child . . . The commonly understood obligations of parenthood entail these minimum attributes; (1) express love and affection for the child; (2) express personal concern over the health, education and general well-being of the child; (3) the duty to supply the necessary food, clothing and medical care; (4) the duty to provide an adequate domicile; and (5) the duty to furnish social and religious guidance." (Citations omitted; internal quotation marks omitted.) In re Deana E., supra, 61 Conn.App. 193. In determining the issue of statutory abandonment, the court has fully considered the respondent's intermittent non-custodial status. In re Shannon S., 41 Conn.Sup. 145, 151, 153, 562 A.2d 79 (1989) (Barnett, J.).

A review of the more than clear and convincing evidence related to Christopher B.'s conduct reveals that through the adjudicatory period and thereafter, this respondent failed "to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child . . ." In re Deana E., supra, 61 Conn.App. 193. While Christopher B. may profess to have great interest in serving as a parent for his son, his conduct contradicts that assertion. In reaching this determination, the court fully credits the more than clear and convincing evidence which reflects the respondent father's inattentiveness to the myriad opportunities DCF and the Tribe provided for visitation with young Noah B.³⁶ As found in Part I.A.2. and 3., Christopher B. served as his son's sole custodian from March 5, 2002 through August 19, 2002.

36 The factual representations set forth in Exhibit 4, a "Summary of Visitation," while prepared by DCF, were relatively unchallenged and established to be highly credible and reliable at trial. The information contained in the exhibit was highly consistent with the testimony provided by Jennifer B. (Testimony of Jennifer B.) Accordingly, the court attributes great weight to the information set forth therein. See, e.g., Shapero v. Mercede, 262 Conn. 1, 9 fn.5, 808 A.2d 666 (2002).

When the child entered DCF custody, weekly father-son visitation was made available by the department, and later by the Tribe, as well. Christopher B. attended visits with his son on August 23 and August 30, 2002. Then he failed to attend any visits scheduled during approximately the next eleven weeks. The respondent father visited with Noah B. on November 21 and December 13, 2002, and then missed approximately seven straight weeks of proffered visitation. Christopher B. and his son spent time together in an interactional evaluation that took place on February 4, 2003; as found in Part I.F., Noah B. was reasonably comfortable in his father's presence, given the lengthy and intermittent periods when Christopher B. was absent from the young child's life. However, following the interactional evaluation, the respondent father missed approximately nineteen weeks of proffered visitation, absenting himself from his toddler son for nearly five months. Near the conclusion of this period, DCF filed the TPR petition at issue, alleging abandonment based upon the respondent father's extremely poor demonstration of interest in his son from August 9, 2002 through June 2003.

Following the filing of the June 2003 TPR, Christopher B. visited with Noah B. on July 3 and July 11, 2003; failed to attend any of the next eight scheduled weekly visits; met with Noah again on September 9, and attended the next two visits scheduled to take place at facilities sponsored by the Tribe. Christopher B. then failed to attend a visit that had been anticipated on October 14, 2003; thereafter, DCF discontinued visits in reasonable reliance upon the respondent father's rather dismal pattern of failing to meet with his son, and upon the professional recommendations of the psychiatrist who had diagnosed the child with reactive attachment disorder (RAD).³⁷ (Exhibits 4, 12.)

37 See footnote 19.

On December 18, 2003, nearly six months after the TPR petition was filed, Christopher B. filed a Motion for Visitation seeking the court's condonation of additional opportunities for father-son contact. On December 29, 2003, the court (Lopez, J.) set that motion down to be argued on January 20, 2004. After hearing and due consideration of the child's GAL's statement of opposition to provision of additional visitation, the court (Lopez, J.) denied Christopher B.'s motion. Accordingly, there has been no visitation between Christopher B. and his son since that date early October 2003.

Utilizing the test provided through In re Deana E., and focusing upon Christopher B.'s conduct in this case, the evidence more than clearly and convincingly establishes that he had abandoned his child following the third OTC. During the adjudicatory period, Christopher B. showed only "a sporadic showing of the indicia of interest, concern or responsibility for the welfare of [his] child" that is fundamental to a parent's role. In re Deana E., supra, 61 Conn.App. 193. The evidence more than clearly and convincingly establishes that Christopher B. loves his child, but he has not expressed personal concern over the health, education and general well-being of the child; has failed to provide the due financial support; and has not furnished social and religious guidance to his young son. He has not sent his child cards or letters, had not attempted to maintain telephone contact with him, and has not provided him with gifts or tokens of affection notwithstanding his financial capacity to do so. In re Deana E., supra, 61 Conn.App. 193. His effort to obtain additional visitation with young Noah B. was made through a motion filed in December 2003, when the TPR trial was imminent, and when many months had transpired since the filing of the TPR petition. Sadly, the evidence more than clearly and convincingly establishes that Christopher B. views Noah B. as a plaything which can be taken up and enjoyed from time to time, but for whom no special degree of caring or consistency need be shown in a parenting context. Christopher B.'s lack of attention to his son's special emotional needs provides more than a clear and convincing indication that he has abandoned the child as contemplated by the statute.

Whether the adjudicatory date of June 25, 2003 or the conclusion of trial proceedings on October 19, 2004 is applied, the evidence in this matter more than clearly and convincingly establishes that Christopher B. has failed the test of meeting "[t]he commonly understood obligations of parenthood" identified in In re Deana E., supra, 61 Conn.App. 193. Accordingly, based on more than clear and convincing evidence presented in this case, the petitioner has met her burden of proving that the respondent father has abandoned Noah, as contemplated by § 17a-112(j)(3)(A).

III.B.2. PARENTAL FAILURE TO REHABIILITATE — § 17a-112(j)(3)(B)(ii)

The petitioner next alleges that the court should terminate Christopher B.'s parental rights because he has failed to achieve rehabilitation within the meaning of § 17a-112(j)(3)(B)(ii).³⁸ Christopher B. counters that he has no need for rehabilitation, and that he stands ready and willing to resume a responsible role in Noah B.'s life. There is no dispute over the evidence indicating that Noah B. was adjudicated to be a neglected child on December 19, 2000. The more than clear and convincing evidence in this matter establishes that by June 25, 2003, when the TPR petition was filed, the child had spent a cumulative total of over twenty-two months in foster care.³⁹ (Testimony of Anne B.) As set forth in Parts I.A. and B., by the time the TPR petition was submitted to the court, the Superior Court for Juvenile Matters had imposed five separate sets of specific steps upon Christopher B. Accordingly, the remaining critical issue for this court is whether the respondent has achieved rehabilitation in the statutory sense. Applying the requisite legal standards⁴⁰ and construing the statute in accordance with § 17a-112(p), the court finds this issue in favor of the petitioner.

38 The TPR petition and attendant summary of facts each designate the statutory ground as issue as "B2." General Statutes § 17a-112(j)(3)(B) provides that parental rights may be terminated by the Superior Court as to the parent of a child who: "(i) has been found by the . . . Court to have been neglected or uncared for in a prior proceeding, or (ii) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child."

39 As found in Part I.A. and B., Noah B. was in DCF foster care from November 3 through December 1, 2000, a total of one month, whereafter he was returned to the custody of his biological mother. The child was next in DCF foster care from February 2, 2001 through February 7, 2002, when he was returned to the custody of the respondent father, anticipating the court's order modifying disposition from commitment to protective supervision on March 5, 2002. He was again kept in DCF foster care for the ten-month period from August 9, 2002, when the third OTC was executed, through June 25, 2003, when the TPR petition was filed; he has remained in DCF custody since that time. (Testimony of Anne B.)

40 "Personal rehabilitation as used in [Section 17a-112] refers to the restoration of a parent to his or her former constructive and useful role as a parent . . . [Section 17a-112] requires that such rehabilitation must be foreseeable within a reasonable time . . . [The statute] requires the court to find, by clear and convincing evidence, that the level of rehabilitation [the parent] has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date [the parent] can assume a responsible position in [the] child's life. (Citations omitted; internal quotation marks omitted). In re Eden F., [ 250 Conn. 674, 706, 741 A.2d 873 (1999)] . . . [I]n assessing rehabilitation, the critical issue is not whether the parent has improved [the] ability to manage [his or her] own life, but rather whether [the parent] has gained the ability to care for the particular needs of the child at issue." (Internal quotation marks and citation omitted). In re Sarah Ann K., 57 Conn.App. 441, 448, 749 A.2d 77 (2000). See also In re Amneris P., supra, 66 Conn.App. 384-85; In re Ashley S., 61 Conn.App. 658, 665, 769 A.2d 718, cert. denied 255 Conn. 250, 759 A.2d 63 (2001).

Several aspects of the more than clear and convincing evidence in this case compel the conclusion that Christopher has not achieved a sufficient degree of rehabilitation with regard to his underlying issues of substance abuse, domestic violence, and poor parenting skills as would encourage the belief that at some reasonable date in the future he could assume a responsible position in Noah B.'s life. See In re Daniel C., 63 Conn.App. 339, 354, 776 A.2d 487 (2001); In re Ashley S., supra, CT Page 2686 61 Conn.App. 665; In re Sarah Ann K., supra, 57 Conn.App. 448. First, as introduced in Part I.D., the psychological evidence in this case more than clearly and convincingly establishes that Christopher B.'s capacity to parent his son remains significantly impaired by the respondent father's continuing unresolved mental health issues, and his consequent inability or unwillingness to meet Noah B.'s particular emotional needs.⁴¹ In making this determination, the court fully credits and relies upon the conclusions regarding Christopher B.'s psychological status that were presented through the testimony of Dr. Cheyne, the court-appointed psychological evaluator, and presented in her report of the February 2003 evaluation of the respondent father and his son. At that time, Dr. Cheyne reported that Christopher B. presented with a number of long-standing, presently pervasive and likely immutable psychological characteristics which would significantly impair his ability to serve as a safe parenting resource for his son. "[Christopher B.] has a tendency to act impulsively and to do whatever it is he wants to do . . . he does not care what other people think of him . . . There is significant concern that this attitude might interfere with his ability to fully cooperate with whatever might be expected of him. Furthermore, his satisfaction with himself and his belief that his behaviors do not need modification can also interfere in complying with whatever might be required of him."⁴² (Exhibit 10.) Christopher B.'s minimization of his substance abuse issues makes him a poor candidate for positive response to treatment; "[w]hile he may be relatively successful in abstaining from substances for periods of time, his impulsivity and defiance are often catalysts for renewed substance abuse." (Exhibit 10; see also Testimony of Dr. Cheyne.)

41 In reaching this conclusion, the court has relied upon the clear and cogent testimony provided by Dr. Cheyne, the highly skilled and well-trained clinical psychologist who was appointed by the court to conduct forensic evaluations of the respondent father and his son. (Exhibit 20.) At trial, Dr. Cheyne's testimony was direct, unbiased, and objective, including sufficient detail and so consistent with the other evidence that the court found her opinions to carry great weight. See In re John G., 56 Conn.App. 12, 24, 740 A.2d 496 (1999) ("psychological testimony from professionals is rightly accorded great weight in termination proceedings").

42 Specifically, Dr. Cheyne reported in February 2003 that "[t]here are a number of mental health issues that are of concern in [Christopher B.'s] clinical profile that have the potential to impair his ability to develop an appropriate relationship with Noah and/or to discharge childcare responsibilities. In a general sense, [Christopher B.'s] attempt to portray himself in an overly favorable light creates concern that there may be more areas of emotional/psychological difficulty than immediately apparent from his presentation and report. Furthermore, his vagueness with regard to incidents in the past and his apparent untruthfulness about participation in therapy lead this evaluator to question the truthfulness of other information given. And, while he did not present with overt evidence of thought disorder, he did endorse several items that would suggest thought-disordered features of his personality . . . He also shows elements of impulsivity, inflated self-esteem and grandiosity. He reports being satisfied with himself and does not see the need for change. [Christopher B.] has a history of substance abuse, the extent of which he essentially minimizes." (Exhibit 10; Testimony of Dr. Cheyne.) Dr. Cheyne explained that Christopher B.'s "hypomania" manifests itself in grandiosity, inflated self-esteem, a sense of recklessness, poor judgment, and the inability to stop particular activities. (Testimony of Dr. Cheyne.) These traits are inimical to the functioning of a parent charged with the responsibility for supervising and nurturing any child, but would severely impact Christopher B.'s ability to respond to Noah B.'s fundamental RAD and PTSD-related needs for consistency, predictability, and even-tempered support.

At trial, Dr. Cheyne credibly explained that Christopher B.'s psychological characteristics are indurated and not likely to change unless the respondent father engages in long-term individual counseling appropriate to meet his needs. The more than clear and convincing evidence establishes that despite his protestations to the contrary, Christopher B. has not participated in such individual counseling, although it was available to him through the NP program and through the Tribe's BHS. Consistent with Dr. Cheyne's expert opinion, the more than clear and convincing evidence establishes that Christopher B.'s parenting capacity indeed remains impaired by his psychological characteristics, as apparent through his failure to comply with the court-ordered specific steps; his absence from the great majority of opportunities to visit with Noah B.; his repeated abuse of alcohol and operation of motor vehicles while under the influence of alcohol; his failure to return to court when ordered to do so; and his involvement in domestic violence with his partner Missy, during the summer of 2004, leading to yet another involvement with the criminal justice system.

Psychologically, the evidence adduced through Dr. Elizabeth K., supported by the testimony of Ruth E. and the FAST reports, more than clearly and convincingly establishes that Noah B. is affected with significant mental health concerns. It is highly apparent that Christopher B. has little or no understanding of his son's particular emotional needs; the respondent father lacks the capacity or commitment necessary to ensure that this young boy learns to trust and express affection for the adult caretakers upon whom he relies for security and support in his environment. See Part I.B. During Dr. Cheyne's court-ordered psychological evaluation, Christopher B. "disputed the existence of any behavior problems and explained that Noah `should be with other kids and doing things.'" (Exhibit 10.) However, he lacked any other comprehensive plan for meeting his son's developmental needs, so well identified at the time by the FAST mental health care providers. (Exhibit 12.) Christopher B.'s failure to fully cooperate with the parenting education proffered him through MH and the Tribe's Judy A. further illustrate his inability or unwillingness to learn even rudimentary skills necessary for long-term parenting of the special child at issue. As such, the respondent father has failed to achieve a degree of rehabilitation sufficient to enable him to provide parenting care for Noah B. now, or in the foreseeable future. See also In re Amneris P., supra, 66 Conn.App. 384-85; In re Sarah Ann K., supra, 57 Conn.App. 448; In re Ashley S., supra, 61 Conn.App. 665.

Factoring Noah B.'s designated special needs into the rehabilitation equation, the court further credits and accepts Dr. Cheyne's unbiased and thorough expert opinion, which was consistent with the other evidence, that Christopher B.'s unmollified personality style renders him an inappropriate parenting figure for the child. Christopher B. continues to exhibit a fundamental disregard for authority, impulsivity, poor judgment, and a tendency to act recklessly without concern for the consequences.⁴³ He lacks insight into the degree to which his substance abuse, reckless conduct, and mental health issues would impair his capacity to care for his child, and he greatly minimized the extent of his parenting deficits. Given these attributes, it is psychologically unlikely that Christopher B. could gain, within a reasonable period of time, the motivation required to engage himself in individual counseling, an appropriate rehabilitative resource. Dr. Cheyne's opinion is consistent with his continued substance abuse-related criminal activities; and with the domestic violence he engaged in with Melissa V. during the summer of 2004; with his long history of failing to access available and appropriate rehabilitation services while leading others to conclude that he was indeed engaged in therapy; and with his history of involvement with the bruises and injuries Noah B. had sustained as an infant and the respondent father's consequent criminal conviction.⁴⁴

43 Dr. Cheyne classified Christopher B.'s symptom set as indicating the presence of ADHD, primarily Impulsive type; Substance abuse disorder of Marijuana and Alcohol; Rule Out Mood disorder; Narcissistic Personality Disorder; and Rule Out Antisocial Personality Disorder. (Testimony of Dr. Cheyne.)

44 The trier of fact may consider evidence of the respondent's arrests even though those arrests did not result in conviction; that evidence is relevant to establish whether the respondent's habits and acts of misconduct will deny the care, guidance or control necessary for its physical, educational, moral or emotional well-being. In re Helen B., 50 Conn.App. 818, 819, 719 A.2d 907 (1998); see also In re Brianna F., supra, 50 Conn.App. 814.

Accordingly, the court adopts Dr. Cheyne's expert opinion that it is not realistic that Christopher B. could be rendered able or willing to provide adequate care for his son within a reasonable period of time given Noah B.'s absolute reliance upon adult caretakers to meet his daily needs, given the child's manifest special emotional needs, and given the fact that he has been maintained in foster care for such a prolonged period of time. (Testimony of Dr. Cheyne.) Thus, from a psychological perspective, the evidence more than clearly and convincingly establishes that Christopher B. has failed to achieve rehabilitation.⁴⁵ In re Amneris P., supra, 66 Conn.App. 384-85; In re Sarah Ann K., supra, 57 Conn.App. 448; In re Ashley S., supra, 61 Conn.App. 665.

45 It is the respondent's inability or unwillingness to function as a parent, now or in the reasonably foreseeable future, and not his mental health status per se, that leads the court to find that Christopher B. has failed to achieve rehabilitation in the context of this case. See In re Jessica S., 51 Conn.App. 667, 673, 723 A.2d 356 cert. denied, 251 Conn. 901, 738 A.2d 1090 (1999).

A second aspect of the more than clear and convincing evidence, the empirical evidence, also establishes that Christopher B. has not achieved a sufficient degree of parenting capacity so as to render him able to play a responsible role in Noah B.'s life in the reasonably foreseeable future. Experience demonstrates that Christopher B. has some effective parenting techniques; the court and DCF had noted the father's bond with his son prior to the August 2002 OTC, and Christopher B. was able to use "an appropriate combination of instructing, participating, and allowing Noah to do for himself" during a supervised interactional visit in February 2003. DCF has admitted that during those few visits he attended, Christopher B. "was appropriate with his interactions and . . . generally involved himself in play activities with Noah . . ." (Exhibits 1, 10.) However, there are marked limits to Christopher B.'s capacity to interact with the child in a healthy, safe manner insofar as providing structure, consistency and predictability are concerned; these elements are fundamental to management of Noah B.'s behavioral issues, according to the FAST clinician Ruth E. and to Dr. Elizabeth K. In this case, the more than clear and convincing evidence establishes that Christopher B. is predominately ineffective when attempting to set appropriate limits when the child's conduct called for assertive, directing conduct on the part of the parent-figure. (Exhibits 1, 10.) The respondent father provided spoken comments to the child that "were beyond Noah's comprehension level and provided much more information than necessary," thus creating the serious potential for confusion and a sense of being overwhelmed on the child's part, particularly given his RAD and PTSD status.

Simply put, experience shows that despite the opportunities extended to him for developing appropriate parenting skills, Christopher B. lacks the capacity to meet Noah's particular needs for behavioral management and support. His continued parenting deficits are consistent with the empirical evidence showing that Christopher B. persists in attending to his own needs and succumbing to his own impulsivity, to the detriment of himself and others around him. This empirical evidence is consistent with Christopher B.'s continued use of illegal drugs during the summer of 2002, notwithstanding the court's orders prohibiting such use; with his contempt of court orders as found by Judge Mack during the summer of 2002; and with his arrest for operating a motor vehicle under the influence of alcohol in December 2002, when Noah B. had entered his third course of DCF foster care. The respondent father's capacity for violence toward loved ones is more than clearly and convincingly apparent from his history of involvement with injuries caused to Noah B. in 2000, during the child's infancy, and also from his assault upon Melissa V. four years later, in July 2004.⁴⁶ (Testimony of Melissa V., Trooper M.) With this consistent pattern of past and present unlawful and dangerous behavior, it would be unreasonable and unfair to risk emotional or physical harm to Noah B. by continuing to contemplate reunification of father and son in this case.

46 See footnotes 10, 44.

A third aspect of the more than clear and convincing evidence, dealing with the respondent father's failure to comply with court-ordered specific steps, again establishes that Christopher B. has not achieved a degree of rehabilitation that is sufficient to enable him to serve as a valid parent for young Noah B.⁴⁷ Although five sets of specific steps were assigned to guide Christopher B. toward reunification with his son, the evidence more than clearly and convincingly indicates that Christopher B. has failed to fulfill a number of significant measures. Commencing with the November 2000 edition, the specific steps repeatedly required Christopher B. to avoid any involvement with the criminal justice system; in other words, he was proscribed by court order from violating the laws of this state. Exhibit 15 (November 2000), Exhibit 16 (December 2000), Exhibit 17 (February 2001), and Exhibit 18 (January 2002) each contained this specific prohibition.⁴⁸ Yet Christopher B. used illegal drugs during the summer of 2002, in direct violation of the steps at issue, and he long-failed to comply with DCF's reasonable request for hair analysis (drug screens) during that period.⁴⁹ Christopher B. has twice been arrested and charged with operating under the influence while the specific steps in this case have been pending, in violation of the laws of this state and the court's orders for positive conduct on his part. Moreover on both September 3 and September 19, 2003, Christopher B. failed to comply with court orders requiring him to appear and respond to these charges; as a result, he accrued two additional charges of Failure to Appear in the Second Degree, and again violated the steps' proscription against further involvement with the criminal justice system.⁵⁰ As found in Part I.B., Christopher B. was also arrested on July 21, 2004, in response to his criminal acts of domestic violence against his romantic partner, Melissa V., acts which were consistent with the violence he perpetrated upon Noah B. prior to the first OTC. (Exhibit 2, 10/1/04; see Part I.A.1. and fn.11.) Each of these offenses illustrates Christopher B.'s unwillingness or inability to adhere to the specific steps' reasonable restrictions upon his conduct; his violations of the law constitute violations of the specific steps, and indicate his continued exhibition of a pattern of conduct which is inimical to safe parenting for a young child like Noah B.

47 Our Supreme Court has commented that "specific steps are considered to be `fair warning' to a parent of the potential termination of parental rights in subsequent proceedings. In re Jeffrey C., 64 Conn.App. 55, 62, 779 A.2d 765 (2001), rev'd on other grounds, 261 Conn. 189, 802 A.2d 772 (2002). 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).

48 Exhibit 19, representing the August 2002 steps, leaves open to question whether the court intended to impose the form's prohibition against further involvement with the criminal justice system.

49 Christopher B. admitted to have used Ecstasy during 2002, while his son's child protection litigation was pending; this admission was consistent with laboratory analysis showing his use of illegal drugs during this period. (Exhibits 9, 20.) Ominously, Christopher B. admitted to Dr. Cheyne that he continued to use drugs in an effort to demonstrate his independence from DCF, explaining to the court-appointed psychological evaluator that once Noah was taken away from him in August 2002, he "decided I could do what I wanted to do. I began using substances to show DCF F____ you." (Exhibit 20.)

50 On October 27, 2003, Christopher B. was convicted of one count of operating under the influence, fined $500 plus costs, and was sentenced to six months of incarceration, suspended after he served the minimum mandatory ten days in jail, with eighteen months of probation. (Exhibits 3, 7.)

Christopher B. also repeatedly violated the specific steps' requirement that he visit with Noah B. as often as DCF permitted. As further described in Parts II.B.1. and 3., the more than clear and convincing evidence indicates that from August 23, 2002 through October 28, 2003, the respondent father attended just over fifteen percent of the sixty-one visitation opportunities provided to him by DCF and/or the Tribe during this period, contrary to the steps' edicts. (Exhibit 4; Testimony of Jennifer B.) This aspect of the respondent father's conduct more than clearly and convincingly manifests a direct violation of the specific steps, indicative of continuing parenting deficits that belie any suggestion that he has achieved any measurable degree of statutory rehabilitation. In addition, as discussed in Parts III.B.1. and III.B.3, Christopher B.'s failure to attend visits with Noah B. indicate his abandonment of the child, and illustrate the lack of an ongoing father-son relationship relevant to this case.

The more than clear and convincing evidence also establishes that Christopher B. has also failed to comply with the specific steps requiring him to participate in individual counseling to address his personal issues, as ordered in January 2001, confirmed in February 2001, and reiterated in August 2002. The respondent father has attended some therapeutic parenting sessions with Judy A., who also provided play therapy for Noah B. (Exhibits 1, 5, 10.) Judy A.'s work with Christopher B. "focused on parenting issues with regard to Noah," however, not on counseling to address the respondent father's use of drugs and alcohol, continued involvement in domestic violence, or issues related to personal maturity. Moreover, Christopher B. maintains an unrealistic notion of how much time and effort he has invested in Judy A's parenting counseling sessions; when he met with the court-appointed psychological evaluator in February 2003, the respondent father indicated that he had been engaged in individual therapy as well as parenting sessions with Judy A. "for the past year and a half, and that he attends sessions every Friday." In fact, Christopher B. regularly attended parenting therapy sessions only through August 2001. He attended counseling with Judy A. sporadically for the following year, and ceased treatment on September 6, 2002.⁵¹ (Exhibit 10.) The respondent father's denial about the minimal nature of his involvement in counseling further illustrates his continuing failure to achieve the degree of rehabilitation that would be sufficient to render him able to provide safe parenting for Noah within a reasonable period of time. Finally, although additional opportunities for individual counseling, anger management and substance abuse treatment services were provided to Christopher B., as called for by the specific steps, the respondent father failed to cooperate with or participate in the NP or OIC program sessions. (Exhibit 1.) He attended minimal only parenting education through the Tribe's BHS. (Exhibit 2.)

51 The court derived this information from review of Exhibit 10, Dr. Cheyne's report of the first court-ordered psychological examination of Christopher B. and his son. In the course of her assessment of the respondent father's mental health and parenting status, Dr. Cheyne reported a consultation with Judy A., whom Christopher B. had ostensibly identified as being his individual therapist. The Commentary to Sec. 7-4(b) of the Connecticut Code of Evidence explains that such a consultation formed an appropriate basis for Dr. Cheyne's opinions on the subject of whether or not Christopher B. had effectively participated in counseling directed at meeting his personal mental health needs. CCE Sec. 7-4(b) (Commentary) (the expert's opinion may be based on facts made known to the expert before trial and of which the expert has no firsthand knowledge See, e.g., State v. Gonzalez, 206 Conn. 391, 408, 538 A.2d 210 (1988) (expert's opinion based on autopsy report of another medical examiner); State v. Cosgrove, 181 Conn. 562, 584, 436 A.2d 33 (1981) (expert's opinion derived from reports that included observations of other toxicologists).

Based on all the facts presented in this case, the court finds by more than clear and convincing evidence that Christopher B.'s rehabilitation is not foreseeable within a reasonable time. In re Daniel C., supra, 63 Conn.App. 353. In reaching this conclusion, the court has analyzed the respondent father's relative lack of present rehabilitation as it relates to his son's particular needs for an attentive, committed and responsible parent who can provide this behaviorally and psychologically-challenged child with emotional stability, security, and consistency. Even if Christopher B. should now actively engage in rehabilitation, making meaningful efforts to address and resolve his substance abuse, domestic violence, and psychological issues, those efforts would be "too little and too late" for Noah B. given the many years that have passed since his adjudication as a neglected child., and given the lengthy period of time he has spent in foster care while his father was provided with repeated, albeit unsuccessful, efforts at achieving parental competence. In re Sheila J., 62 Conn.App. 470, 481-82, 771 A.2d 244 (2001). Given his own special needs, and Christopher B.'s relative disinterest in the rehabilitation process, Noah B. should not be required to wait any longer for his biological father to gain sufficient control over his substance abuse, domestic violence, and mental health issues so that he can occupy a responsible parenting role. See In re Amneris P., supra, 66 Conn.App. 385 (child should not be further burdened by having to wait for her parent to achieve sufficient rehabilitation).

Thus, in its totality, the more than clear and convincing evidence compels the conclusion that despite some participation in a rehabilitation regimen, Christopher B. remains without the qualities necessary to successfully parent Noah B. and lacks the ability to assume a responsible position in his child's life within a reasonably foreseeable time in the future. Accordingly, based on the more than clear and convincing evidence presented in this case, the petitioner has proved the respondent father's failure to achieve rehabilitation pursuant to § 17a-112(j)(3)(B)(ii).

III.B.3. LACK OF ONGOING PARENT-CHILD RELATIONSHIP — § 17a-112(j)(3)(D)

The petitioner next alleges that no ongoing parent-child relationship exists between Christopher B. and his son in the statutory sense; that Noah B.'s best interests will not be served by allowing additional time for this relationship to be developed; and that the TPR petition should be granted pursuant to General Statutes § 17a-112(j)(3)(D).⁵² Christopher B. argues that he has attempted to reinstate visits with his son, and that he maintains his own emotional bond with the child. Applying the requisite legal standards and construing the statute in accordance with § 17a-112(p), the court finds this matter in favor of the petitioner.

52 General Statutes § 17a-112(j)(3)(D) provides for termination of parental rights "where there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day to day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child."

The relevant legal algorithm first requires the court to determine whether a parent-child relationship exists between Christopher B. and his son.⁵³ In re Jonathon G., supra, 63 Conn.App. 525. In the distant past, a measurable father-son relationship was apparent to others. On December 12, 2001, the court (Mack, J.) remarked "DCF reports that Chris is very bonded w/his son, DCF['s] concern [is] that father learn the parenting piece." The DCF social worker assigned to the family from April through September 2002 also observed the bond between the respondent father and his son. (Testimony of Anne B.) However, as found in Parts III.A. and III.B.1., following the August 2002 OTC, Christopher B. maintained only minimal contact with his young son. The respondent father's absence from approximately eighty-five percent of the weekly visits made available during the year following the third OTC more than clearly and convincingly reflects the reality that Christopher B. had effectively eviscerated any parent-child relationship he may have had with Noah B. in the past. In failing to make an adequate effort to attend these visits, "Here, the respondent, rather than the state, created the circumstances that caused and perpetuated the lack of an ongoing relationship between the respondent and [his son]. See In re Lauren R., 49 Conn.App. 763, 775, 715 A.2d 822 (1998) . . . It was the respondent's actions, which resulted in [the third OTC], that occasioned his separation from the child. In re Alexander C., 67 Conn.App. 417, 424, 787 A.2d 608 (2001). In this case, the more than clear and convincing evidence further establishes that it was the respondent's actions which so severely interfered with the potential that an ongoing parent-child relationship could be maintained while the court had ordered Noah B.'s physical safety to be ensured by placing him in temporary DCF custody, followed by the September 2003 commitment to the department's care.⁵⁴ See Part I.B.

53 Section 17a-112(j)(3)(D) "`. . . requires the trial court to undertake a two-pronged analysis. First, there must be a determination that no parent-child relationship exists, and second, the court must look into the future and determine whether it would be detrimental to the child's best interest to allow time for such a relationship to develop . . . In considering whether an ongoing parent-child relationship exists, the feelings of the child are of paramount importance . . . The ultimate question is whether the child has no present memories or feelings for the natural parent . . . Feelings for the natural parent connotes feelings of a positive nature only . . .' In re Tabitha T., 51 Conn.App. 595, 601-02, 722 A.2d 1232 (1999)." (Internal and external quotations omitted.) In re Jonathon G., supra, 63 Conn.App. 525. See also In re Brea B., 75 Conn.App. 466, 470, 815 A.2d 1261 (2003).

54 This commitment followed Christopher B.'s belated efforts at visitation, following the submission of the TPR petition at issue; the commitment also followed Noah B.'s reassertion of aggressive and oppositional visits in connection-with father-son contact. See footnote 18.

In discerning whether a parent-children relationship exists, the court must also determine whether Noah B. maintains any present feelings for the respondent father and, if so, whether those feelings are of a positive nature. In re Jonathon G., supra, 63 Conn.App. 525. In this case, the more than clear and convincing evidence indicates that while Noah B. sometimes tolerates his father's presence, and may even engage in play activities with him, overall the child maintains no positive feelings for his biological father that resemble those related to the father-son bond contemplated by § 17a-112(j)(3)(D). At Dr. Cheyne's first interactional evaluation in February 2003, Noah B. appeared to be comfortable with his father, engaged in play activities together, and "attended to what [Christopher B.] said to him." (Exhibit 10.) However, the evidence clearly and convincingly reveals that at that time, while Noah B. may have tolerated and accepted opportunities to spend time with the respondent father, the child maintained no feelings that could reasonably be categorized as "positive" in nature. For instance, at this visit, "there was very little physical affection between the two. When [Christopher B.] picked Noah up to hug him, Noah did not object, but he did not return the hug . . . Noah did not approach [Christopher B.] for affection or comfort." (Exhibit 10.) At the time, the child expressed no distress when he was separated from the respondent father, even though he inquired about his father's whereabouts and desired to "find" him again. (Exhibit 10.)

Overall, the court credits and adopts Dr. Cheyne's expert opinion that although Christopher B. seemed bonded to his son during the interactional evaluation and professes love for Noah B., the child was not overtly interested in the respondent father, and the existence of only an informal relationship was manifest in Noah B.'s behavior at the time.⁵⁵ (Testimony of Dr. Cheyne.) The court further credits and adopts the conclusion reached by the FAST clinicians and DCF indicating that the resumption of father-son visits in the fall of 2003 had a markedly deleterious effect on Noah B.'s conduct at his foster home; evidence of the child's regression more than clearly and convincingly supports the inference that any feelings he maintained for Christopher B. at the time were not positive, but were rather those of confusion, anger, fear, and mistrust, all negative feelings in the context of the statute at issue.

55 Christopher B. may argue that he was prevented from maintaining a relationship with his son because DCF suspended visits in November 2003, as discussed in Part I.C. (Exhibit 4.) Moreover, the court subsequently ordered the suspension of visitation to continue pending the outcome of the TPR litigation. See footnote 18.

As it is thus apparent that no statutory parent-child relationship exists between Christopher B. and the child at issue, the court is next called to assess whether it would be detrimental to Noah B.'s best interests to allow additional time for a parenting relationship to he developed with the respondent father.⁵⁶ In re Jonathon G., supra 63 Conn.App. 525. As fully discussed in Parts III.A., III.B.2. and IV., the more than clear and convincing evidence in this case compels the conclusion that Christopher B. is not likely, in the measurable future, to acquire any of the parenting skills or psychological attributes which are necessary to reasonably meet Noah B.'s manifest special emotional needs. As eloquently stated by the child's GAL, Noah B. needs to know that he has a place in a permanent home, cared for by loving and stable parents who are now willing and able to address his developmental and behavioral challenges. (Testimony of Atty. Duhaime.) The child cannot acquire this knowledge if additional time is expended in a highly-likely unsuccessful effort to engage Christopher B. in personal rehabilitation services which would only possibly imbue him with sufficient psychological stability and parenting skills to restore him to a functional parenting role. As found in Part III.B.2., Noah B.'s best interests cannot be served by requiring him to wait any longer for his biological father to gain sufficient control over his substance abuse, domestic violence, and mental health issues so that he can occupy a responsible parenting position in the child's life. See In re Amneris P., supra, 66 Conn.App. 385. The more than clear and convincing evidence supports the contrary conclusion, that Noah B.'s best interests can only be served by now severing the legal bond between father and son in this case.

56 The specific factors considered in deciding whether it would be in the child's "best interest" to permit further time for a relationship with his father to develop are set forth in Part IV.B.

"It is reasonable to read the language of no ongoing parent-child relationship to contemplate a situation in which, regardless of fault, a child either has never known his or her parents, so that no relationship has ever developed between them, or has definitively lost that relationship, so that despite its former existence it has now been completely displaced."⁵⁷ (Citations omitted.) In re John G., 56 Conn.App. 12, 22, 740 A.2d 496 (1999). Such construction is applicable to the present case, where the more than clear and convincing evidence establishes that any valid parenting relationship that Christopher B. may have developed with Noah B. has been definitively lost due to Christopher B.'s failure to attend visits, and failure to cooperate with an appropriate plan for treatment of his multiple mental health and substance abuse issues. As the more than clear and convincing evidence in this case establishes that no ongoing parent-children relationship exists between the respondent father and his son, and that it is not in the best interests of Noah B. to allow more time for Christopher to develop a relationship with his biological father, the petitioner has met her burden of proof under § 17a-112(j)(3)(D). In re Jonathon G., supra, 63 Conn.App. 525; In re John G., supra, 56 Conn.App. 22.

57 "If the statutory language were to be taken at face value, the first prong-with its `day to day' criteria would rarely, if ever, be satisfied by a non-custodial parent. In re Luke G., [ supra,] 40 Conn.Sup [324-25]." In re Shannon S., 41 Conn.Sup. 145, 158, 562 A.2d 79 (1989) (Barnett, J.).

IV. APPLICATION OF Federal LAW RELATING TO NOAH B.'s STATUS AS AN INDIAN CHILD CT Page 2696

As previously noted, Connecticut's appellate level courts have not yet examined the implications of he ICWA for termination of parental rights cases involving Indian children in this state.⁵⁸ Two particular aspects of the ICWA are relevant to the case of Noah B.; the provisions relating to the provision of services to the Indian family, and the provisions related to expert testimony as a predicate to termination of parental rights affecting the Indian child. In construing this legislation, whose language is clear and unambiguous, the court has utilized the reasonable and logical lessons of Connecticut's "plain meaning rule" which is appropriate for the process of parsing any legislative act: "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extra-textual evidence of the meaning of the statute shall not be considered." General Statutes § 1-2z (codified from P.A. 03-154, approved June 26, 2003 and effective October 1, 2003).

IV.A. APPLICATION OF 25 U.S.C. § 1912(d).

25 U.S.C. § 1912(d) provides that: "Any party seeking to effect . . . termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful." Thus, the federal law, which is applicable in addition to Connecticut's termination of parental rights provisions, requires evidence that the petitioning party made at least "active" efforts to provide remedial and rehabilitative services to maintain the Indian family's integrity as an alternative to TPR.

The federal legislation provides no precise definition of the term "active" and specifies no burden of proof to be met by the party bringing forth a TPR petition involving an Indian child. (Compare 25 § 1912(f), discussed below.) However, under the circumstances of this case, as found in Part II.A., the more than clear and convincing evidence of the department's reasonable efforts at providing reunification services to Christopher B. could reasonably and logically be described as "active efforts" in the context of 25 U.S.C. § 1912(d). It would be reasonable, as well, to construe the "active" efforts contemplated by CT Page 2697 25 U.S.C. § 1912(d) as requiring only those efforts which were appropriate under the circumstances of this case, factoring into the equation the evidence which establishes, by more than the clear and convincing standard, that Christopher B. had so little interest in his son that he failed to attend the vast majority of visits made available to him. The evidence presented in this case leaves no question but that the department's efforts "have proved unsuccessful," due to the respondent father's inability or unwillingness to achieve any measurable degree of benefit from the reunification and rehabilitation services that were available to him while Noah B. lingered in foster care.

IV.B. APPLICATION OF 25 U.S.C. § 1912(f).

25 U.S.C. § 1912(f) provides that: "No termination of parental rights may be ordered . . . in the absence of determination, supported by evidence beyond a reasonable doubt, including testimony of a qualified expert witness, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." As previously noted, the text of 25 U.S.C. § 1912(f) does not identify the qualifications required for such an expert witness, nor does the legislation specify the nature or extent of the testimony to be provided as a basis for the court's finding. However, "[g]uidelines for state courts have been promulgated by the Bureau of Indian Affairs to assist in defining a qualified expert witness under the Act. 44 Fed Reg. 67584 (1979). While not binding on this court, section D.4(b) of the guidelines sets the following as the persons who are most likely to meet the requirements of a qualified expert witness for purposes of Indian child custody proceedings: (i) A member of the Indian child's tribe who is recognized by the tribal community as knowledgeable in tribal customs . . . (ii) A lay expert witness having substantial experience in the delivery of child and family services to Indians . . . (iii) A professional person having substantial education and experience in the area of his or her specialty. Burks v. AR Dept. of Human Services, 76 Ark.App. 71, 61 S.W.3d 184 (2001); see also In the Matter of Amador, 176 Or.App. 237, 30 P.3d 1223 (2001) (even where state does not adopt BIA guidelines, "they are nevertheless instructive to . . . interpretation of the statute"). "There is, however, no absolute requirement that the `qualified expert witnesses' necessary for a finding under §§ 1912(f) be an "Indian expert witness." (Internal quotation marks and external citation omitted." In the Matter of M.J.J., (2003 OK.Civ.App.), 4369 P.3d 1226 (2003.)

In this matter, the psychological evidence adduced through the independent, court-appointed evaluator Dr. Cheyne and the child's therapist Dr. Elizabeth K. clearly and convincingly fulfilled the criteria of the third category of expert witnesses identified by the BIA regulations. (Exhibits 10, 20; Testimony of Dr. Cheyne.) "Special knowledge of Indian life is not necessary where a professional person has substantial education and experience and testifies on matters not implicating cultural bias." (Internal quotation marks and external citations omitted.) In the Matter of M.J.J., supra, 4369 P.3d; see also In re M.S., 2001 ND 68, 624 N.W.2d 678 (2001); In re the Guardianship of J.O., 327 NJ.Super. 304, 743 A.2d 341 (2000). "This case clearly does not implicate cultural bias. Racial traditions are not implicated in allegations that a parent has failed to provide a very young child adequate . . . supervision. The Indian Child Welfare Act was not intended as a shield to permit abusive treatment of Indian children by their parents or to allow Indian children to be abused, neglected, or forlorned under the guise of cultural identity." (Internal quotation marks and external citation omitted.) In re M.S., supra, 624 N.W.2d 678.

Together with testimony presented by Sandra E., an active and enrolled member of the Tribe whose ancestry is descended from Uncas, and who is clearly familiar with her tribe's culture and child-rearing values, the petitioner met her burden of providing expert witnesses who satisfy the first and second categories of expert witnesses contemplated by 25 U.S.C. § 1912(f), as reasonably identified by the BIA. Through the evidence provided by Dr. Cheyne and Sandra E., the court was provided with appropriate and abundant direct and circumstantial evidence from which reasonable and logical inferences could be drawn concerning the issues at hand, to wit, the potential that Noah B. would be subject to "serious emotional or physical damage" if he was permitted to be maintained in the care and custody of his biological father. From the constellation of the relevant expert witness testimony evidence which rises to the level of proof beyond a reasonable doubt; from the woeful and absolute evidence relating to Christopher B.'s failure to attend even a minimum number of visits with his son while he was in foster care following the third OTC, leaving the child unequivocally "forlorned;" and based upon the overwhelming consistent evidence presented at trial which, taken together also rises to the level of proof beyond a reasonable doubt, the court has concluded that Christopher B.'s parenting capacities continue to be adversely affected by substance abuse, domestic violence, and unresolved mental health issues.⁵⁹ The petitioner's proof has established, beyond a reasonable doubt, that Christopher B. lacks the willingness or ability to put the child's needs for safety and security ahead of his own impulsive and unfettered desires for personal satisfaction. In re Luke, supra, 20 Conn.Sup. 326-27. This conclusion is overwhelmingly supported by the cumulative and consistent more than clear and convincing factual findings presented in Parts I., III, and IV., including but not limited to: evidence of the three court-ordered OTCs that have been issued in this case to protect Noah B.'s physical safety; by the respondent father's arrest and conviction in 2000 for charges related to the physical injuries inflicted upon his infant son; by his continuing use of drugs and alcohol, and by his repeated operation of a motor vehicle while under the influence notwithstanding specific court orders to the contrary; and by the physical assault he perpetrated upon his domestic partner, Melissa V., during the summer of 2004. See State v. Webb, supra, 75 Conn.App. 451 ("the cumulative impact of a multitude of facts" provides an appropriate basis upon which a legal finding may be reached "beyond a reasonable doubt").

59 See footnotes 9 and 13 (province of the trier of fact to draw proper inferences from evidence presented in civil and criminal matters).

Accordingly, the court concludes, based upon the evidence which rises to the level of proof beyond a reasonable doubt, that any continued custody of Noah B. by his biological father, an Indian custodian, "is likely to result in serious emotional or physical damage to the child."⁶⁰ 25 U.S.C. § 1912(f). Thereby, the petitioner has met her burden of proof on this final ICWA element.

60 The Tribe, represented by counsel through the trial, raised no contest to the adequacy of the expert witnesses presented in support of the federal or state law elements underlying the TPR petition. Under all the circumstances of this case, the court finds that the petitioner's "expert" witnesses "possess adequate experience, and have unique qualifications to sufficiently satisfy [ 25 U.S.C. § 1912(f)]'s requirements" without compromise to any degree whatsoever. Burks v. AR Dept. of Human Services, supra, 61 S.W.3d 184.

V. DISPOSITION

As the court has concluded that statutory grounds for termination exist, it next "must determine whether termination is in the best interests of the child."⁶¹ (Citation and quotation marks omitted.) In re Quanitra M., supra, 60 Conn.App. In the dispositional phase, the court considered the evidence and testimony related to events occurring through the close of trial.⁶²

61 The remaining element of the termination of parental rights statute requires that before granting a duly noticed petition for such termination, the court must find, "by clear and convincing evidence . . . that termination is in the best interest of the child." § 17a-112(j)(2).

62 "[T]he question . . . to be decided in a dispositional phase is whether it is in the best interests of the child to sever the parent-child relationship. That is different from the question of who should have custody of the child if termination of parental rights is determined to be in the best interests of the child. See Practice Book § 33-5 [now § 33a-9]" In re Carissa K., 55 Conn.App. 768, 776, 740 A.2d 896 (1999). "In making this determination, the trial court can consider all events occurring prior to the date of the dispositional hearing, including those occurring after the filing of the termination petition." (Citation omitted.) In re Kasheema L., 56 Conn.App. 484, 488, 744 A.2d 441 (2000).

V.A. SEVEN STATUTORY FINDINGS

The court has made each of the seven written factual findings required by General Statutes § 17a-112(k) based upon the evidence presented at trial, and has considered the evidence relevant to each of these findings when determining Noah B.'s best interests.⁶³ Such findings are required only as to Christopher B., in light of Beth A's valid consent to TPR. § 17a-112(k).

63 `"The factors . . . 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. CT Page 2721 In re Quanitra M., 60 Conn.App. 96, 104-05, 758 A.2d 863, cert. denied, 255 Conn. 903, 762 A.2d 909 (2000)." In re Victoria B., 79 Conn.App. 245, 259, 829 A.2d 855 (2003).

V.A.1. TIMELINESS, NATURE AND EXTENT OF' SERVICES — § 17a-112(k)(1)

Multiple timely and appropriate services were made available to Christopher B. as set forth in Part III.A. Those services included Intensive Family Preservation; Visiting Nurse attention; parenting education at MH; anger management classes at OIC; substance abuse evaluation and counseling at NP; and support services from DCF, encompassing but not limited to myriad opportunities for supervised visitation with the child. In addition, through his Tribe, Christopher B. had access to abundant services, including substance abuse treatment, individual counseling, parenting education, and therapeutic visitation. However, the more than clear and convincing evidence establishes that the respondent father was unable or unwilling to reap a timely benefit from such reunification efforts.

V.A.2. REUNIFICATION EFFORTS PURSUANT TO FEDERAL LAW — § 17a-112(k)(2)

Under the circumstances of this particular case, as discussed throughout the opinion, DCF made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended.

V.A.3. COMPLIANCE WITH COURT ORDERS — § 17a-112(k)(3)

As discussed in Parts III.A. and III.B., Christopher B. has failed to comply with a number of significant court orders established through the five sets of specific steps imposed upon him during the course of this litigation. His failure to attend visits with his child whenever DCF permitted him to do so not only constitutes a violation of the court's specific steps but has had a significant mitigating effect upon the respondent father's protests that he is able and willing to serve as an appropriate parent for his child. Christopher B. also violated the steps' proscription of criminal activity by using illegal drugs, perpetrating domestic violence, and by failing to comply with several court orders requiring him to appear and answer to the charges brought against him by the State's Attorney; these violations of the specific steps also constituted discrete violations of Connecticut criminal law.

V.A.4. — THE CHILD'S FEELINGS AND EMOTIONAL TIES — § 17a-112(k)(4)

As discussed in Parts I.C., I.D. and III.B.3., in the past Noah B. has been comfortable in the presence of his father, willing to engage in play activities during visits. Commencing with the third OTC in August 2002, however, Christopher B. began a pattern of attending father-son visits on only a sporadic and unpredictable basis. As a result, during the summer of 2003, Noah B. was found to exhibit highly aggressive and oppositional behavior in connection with his visits with the respondent father. When father-son visits were discontinued, the child's negative behaviors remissed. From these factual circumstances, the court draws the well-founded inference that any positive emotional ties Noah B. may have had with Christopher B. were exhausted by the summer of 2003; any such ties have never again been restored.

V.A.5. AGE OF THE CHILD — § 17a-112(k)(5)

Noah B. was born on August 27, 2000. He is four and a half years old, and has spent the great majority of his young life in the care of his DCF foster parents. Other than as a newborn, Noah B. was in Christopher B.'s custody for only five months, from March through August 2002.

V.A.6. PARENT'S EFFORTS TO ADJUST CIRCUMSTANCES — § 17a-112(k)(6)

As fully discussed in Parts II.A. and B., Christopher B. has not maintained adequate contact with his son during the course of this case. He has failed to adequately inquire of DCF regarding Noah B.'s status, and he has not made realistic and sustained efforts to conform his conduct to even minimally acceptable parental standards. Christopher B. steadfastly denies that he has any problems with substance abuse, domestic violence, or psychological issues. Giving him additional time would not likely bring his performance, as a parent, within acceptable standards sufficient to make it in the best interests of the child to be reunited with him.

V.A.7. EXTENT TO WHICH CHRISTOPHER B. WAS PREVENTED FROM MAINTAINING A RELATIONSHIP WITH NOAH B. — § 17a-112(k)(7)

No unreasonable conduct by the child protection agency, foster parents or third parties prevented Christopher B. from maintaining a relationship with his son, nor did his economic circumstances prevent such relationship, although the limitations and restrictions inherent in the foster care system were in effect. As described in Part II.B.1., although Christopher B. filed a Motion for Visitation in December 2003, months after the TPR petition had been filed against him, it was the court's order denying such motion, not any independent action by DCF or third parties, that denied the respondent father further access to the child.

V.B. BEST INTERESTS OF THE CHILD — § 17a-112(j)(2)

In determining whether it would serve Noah B.'s best interests to terminate Christopher's parental rights,⁶⁴ the court has applied the appropriate legal standards to the facts of this case.⁶⁵ Beth A. having tendered her valid consent to TPR, only dispositional issues affecting Christopher B. are under consideration. Under such scrutiny, the more than clear and convincing evidence establishes that it is not in the best interests of the child to continue to maintain any legal relationship with his biological father. Therefore, based on the more than clear and convincing evidence presented and adopting the conclusions reached in Parts III., IV., and V.A., the court finds this issue in favor of the petitioner.

64 "Termination of parental rights means the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and the child's parent or parents . . . Termination of parental rights is a most serious and sensitive judicial action. In re Barbara J., 215 Conn. 31, 44, 574 A.2d 203 (1990)." (Quotation marks and internal citation omitted.) In re Steven N., 57 Conn.App. 629, 632, 749 A.2d 678 (2000).

65 In determining whether termination of the respondents' parental rights would be in Noah B.'s best interests, the court has examined the multiple relevant factors, including the child's interests in sustained growth, development, well-being, stability and continuity of his environment; the length of his stay in foster care; the nature of his relationship with his foster parents and biological parents; and the degree of contact maintained with his biological parents. In re Alexander C., 60 Conn.App. 555, 559, 760 A.2d 532 (2000); In re Shyina B., 58 Conn.App. 159, 167, 752 A.2d 1139 (2000). The court has also considered "the genetic bond shared by a biological parent and his or her child, [which] although not determinative of the issue of the best interest of the child, is certainly a factor to consider." (Citations and quotation marks omitted.) In re Savanna M., 55 Conn.App. 807, 816, 740 A.2d 484 (1999). The court has also balanced Noah B.'s intrinsic need for stability and permanency against the risks and benefits of maintaining a connection with his biological parents. See Pamela B. v. Ment, 244 Conn. 296, 314, 709 A.2d 1089 (1998) (child's physical and emotional well-being must be weighed against the interest in preserving family integrity).

In reaching this determination, the court has considered the more than clear and convincing evidence which overwhelmingly establishes that Christopher B. cannot now, and is not in the reasonable future likely to be able to, provide a safe, secure home for Noah B. The court has considered Christopher B.'s likely role in the perpetration of the injuries upon his son which led to the first OTC in 2000, and which led to the respondent father's conviction for Reckless Endangerment. (Exhibit 3.) The court has also considered the two OTCs which followed, and the abundant evidence of the child's special emotional needs, which cannot be met by a parent who has been unable or unwilling to develop the capacity to effectively address his own psychological issues, let alone address those of his son. The court has also considered the evidence which rises to the level of proof beyond a reasonable doubt, as discussed in Parts II. and IV., indicating that if Noah B. is returned to the custody of the respondent father, such event "is likely to result in serious emotional or physical damage to the child" as contemplated by 25 U.S.C. § 1912(f).

On the subject of disposition and meeting the child's best interests, the court has also paid close heed to the more than clear and convincing evidence presented through the sworn testimony of Noah B.'s skilled and experienced GAL. See In re Tayquon H., supra, 76 Conn.App. 705-06. Based on a thorough analysis of the evidence presented at trial, and based upon his independent knowledge of the child's family situation, the GAL credibly opined that although Christopher B. has been provided with a protracted period of time in which to achieve rehabilitation, he has made no measurable progress whatsoever in dealing with his own psychological and substance abuse issues. The GAL further opined, without hesitation and consistent with the other evidence received at trial, that Noah B.'s best interests cannot now, or in the future, be met by causing his legal relationship to Christopher B. to remain in effect. Rather, the GAL established by more than clear and convincing evidence, the child's best interests will be met by permitting him to remain permanently in the care and custody of able, caring, and reliable adult caretakers who will serve as appropriate parenting figures for Noah B.⁶⁶ (Testimony of Atty. Duhaime.)

66 The GAL highly recommended that Noah B. be permitted to remain permanently in the custody of his present foster parents, as an adopted child following termination of the parental rights at issue. (Testimony of Atty. Duhaime.) In considering this evidence, the court acknowledged the principles establishing that in a termination proceeding, the court may properly consider the suitability of proposed "adoptive parents" when addressing the child's best interests issues. In re Vincent D., 65 Conn.App. 658, 666, 783 A.2d 534 (2001).

The more than clear and convincing evidence in this case establishes that Noah B.'s special emotional needs will best be served if he is parented by caretakers who are calm, patient, nurturing, and extraordinarily consistent and reliable. Through therapy with Dr. Elizabeth K., both Noah B. and his foster parents are learning to employ specific strategies to ease his discomfort when environmental triggers occur. Both Kenneth and Kathy D. have so benefited from the child's therapist's instruction that they fully understand why Noah B. pushes them away; they have become so able to utilize effective methods for engaging his attention that the child can sometimes now show them affection and a healthy response to their concern and attention, despite his RAD and PTSD issues. (Testimony of Dr. Elizabeth K.) The court fully credits the more than clear and convincing evidence which establishes that Noah B.'s particular emotional needs are being well met in the foster home where he spent over twenty-two months prior to the submission of the TPR petition, and where he has continuously remained in residence for the past two and a half years.⁶⁷

67 See footnote 66. While considering the attributes of Kenneth and Kathy D. in the context of determining Noah B.'s best interests, the court has fully adhered to the time-honored rule that "a judicial termination of parental rights may not be premised on a determination that it would be in the child's best interests to terminate the parent's rights in order to substitute another, more suitable set of adoptive parents." In re Baby Girl B., 224 Conn. 263, 280, 618 A.2d 1 (1992), cited in In re Denzel A., 53 Conn.App. 827, 835, 733 A.2d 298 (1999); see also In re Juvenile Appeal (Anonymous), 177 Conn. 648, 673, 420 A.2d 875 (1979).

Our courts have recognized that "long-term stability is critical to a child's future health and development." In re Eden F., supra, 250 Conn. 709. Furthermore, "[b]ecause of the psychological effects of prolonged termination proceedings on young children, time is of the essence . . ." when resolving issues related to the permanent or temporary care of neglected children. In re Alexander V., 223 Conn. 557, 562, 613 A.2d 780 (1992). Noah B.'s counsel, also acting as his statutory GAL, has vigorously argued that termination of parental rights will serve the child's best interests. See General Statutes § 46b-129a(2). The court is constrained to agree and concludes that the more than clear and convincing evidence in this case establishes that Noah B. is entitled to the benefit of ending, without further delay, the long period of uncertainty as to the availability of either of his biological parents as caretakers, so that he can be permanently cared for in a home with caretakers who are loving, responsible, able and willing to meet this child's special needs.

Having balanced the child's intrinsic need for stability and permanency against the benefits of maintaining a connection with his biological parents, the more than clear and convincing evidence in this case establishes that Noah B.'s best interests will served by termination of the respondents' parental rights. Pamela B. v. Ment, supra, 244 Conn. 313-14. Accordingly, with respect to the best interests of the child contemplated by § 17a-112(j)(2), by more than clear and convincing evidence, and based upon all of the foregoing, including the testimony and evidence presented, the court herein terminates the respondents' parental rights to Noah B.

VI. ORDER OF' TERMINATION

WHEREFORE, after due consideration of Noah B.'s sense of time; his need for a secure and permanent environment; the relationship he has with his foster parents; and the totality of circumstances; and having considered all the relevant legal standards and having found by more than clear and convincing evidence that grounds exist for termination of parental rights; and having concluded that the termination of the parental rights at issue will be in the child's best interests, the court issues the following ORDERS.

That the parental rights of Beth A. and Christopher B. are hereby terminated as to the child Noah B.

That the Commissioner of the Department of Children and Families is hereby appointed the statutory parent for Noah B. for the purpose of securing an adoptive family or other permanent placement for him.

That a permanency plan shall be submitted within 30 days of this judgment, and that such further reports shall be timely presented to the court, as required by law.

That primary consideration for adoption of Noah B. shall be offered to his current foster parents.

BY THE COURT,

N. Rubinow, J.