Opinion
H12CP14015407A
08-31-2016
In re Nyair M. [*]
September 1, 2016, Filed
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Robert G. Gilligan, Judge
By petition filed with the court on January 15, 2016, the Commissioner of the Department of Children and Families (" DCF") seeks to terminate the parental rights of Shacara C. (" Mother") and Alrick M. (" Father") as those rights pertain to the minor child, Nyair M., born October 29, 2012. Proper service of process on both respondents has been confirmed and notice of the trial was properly given in accordance with the applicable provisions of the Connecticut General Statutes and the Practice Book. Counsel was appointed for Father and the minor child. Despite in-hand service of process and her participation in the neglect proceedings, Mother has never appeared in this action. There is no known action pending in any other court concerning custody of the minor child nor any claim of Native American affiliation. The court finds that it has proper jurisdiction over this matter.
Procedural History
On May 29, 2014, the court entered a judgment of paternity adjudicating Father as the biological father of Nyair, accepted written pleas of nolo contendere from Mother and Father, found Nyair neglected as being permitted to live under conditions injurious to his well-being and committed Nyair to the care and custody of the Commissioner of the Department of Children and Families. (Dannehy, J.) At a hearing on January 13, 2016, the court approved a permanency plan of Termination of Parental Rights and Adoption for Nyair over the objection of Father. (Dannehy, J.) An initial plea hearing on the termination of parental rights petition was held on February 11, 2016. Father was present and was appointed counsel. Mother failed to appear and following a finding of proper service and a military affidavit, Mother was defaulted for failure to appear. (Woods, J.)
A trial on the petition was conducted on July 14, 2016. Father was present and represented by court-appointed counsel. Notice of the trial date was sent by the clerk to Mother's most recent home address. Mother did not appear. The court advised Father of his rights including the right to remain silent and the potential that the court may draw an adverse inference from his failure to testify.
The court heard testimony from DCF's witnesses, Adult Probation Officer, Angela DeNicola, Nyair's foster mother Stacy (last name confidential), DCF social worker, Lesley Echevarria, DCF case aide Cynthia Petracca and DCF treatment social worker, Freda Griffin. Father also testified after the court provided him with an additional canvass on his right to remain silent, the court's intention to not draw an adverse inference from his failure to testify and confirmation that he had consulted with his attorney concerning the foregoing. DCF offered exhibits (Exhibits A, B, C, D, E, F, G, H, I, J and K) which were admitted as full exhibits without objection. Neither Father nor counsel for the child offered exhibits. Counsel for DCF orally moved for the court to take judicial notice of all prior court proceedings and records relating to the child protection history of Nyair. The court granted the motion absent objection and took judicial notice of the pleadings and their filing dates, court memoranda of hearings, and prior court rulings and orders in the court files as the same relate to Nyair and the respondent parents' child protection history.
The court was able to closely observe the appearance and demeanor of the respondents and all the witnesses and determine the validity, cohesion, and the credibility of their testimony. The court has reviewed and considered the documentary evidence admitted as full exhibits. The court makes the following findings herein by clear and convincing evidence upon an independent assessment of all the evidence.
Legal Standard
A hearing on termination of parental rights consists of two phases: adjudication and disposition. In the adjudicatory phase, the court must determine whether the proof provides clear and convincing evidence that at least one ground pleaded exists to terminate parental rights as of the date of the filing of the petition or last amendment. See In re Keyashia C., 120 Conn.App. 452, 455, 991 A.2d 1113, cert. denied, 297 Conn. 909, 995 A.2d 637 (2010); In re Javon R., 85 Conn.App. 765, 769, 858 A.2d 887 (2004); In re Joshua Z., 26 Conn.App. 58, 63, 597 A.2d 842, cert. denied, 221 Conn. 901, 600 A.2d 1028 (1991); Practice Book § § 32a-3(b), 35a-7. However, where the ground alleged involves failure of the respondent to rehabilitate " in the adjudicatory phase, the court may rely on events occurring after the date of the filing of the petition to terminate parental rights when considering the issue of whether the degree of rehabilitation is sufficient to foresee that the parent may resume a useful role in the child's life within a reasonable time." In re Gianni C., 129 Conn.App. 227, 234, 19 A.3d 233 (2011); In re Jennifer W., 75 Conn.App. 485, 495, 816 A.2d 697, cert. denied, 263 Conn. 917, 821 A.2d 770 (2003); In re Joseph L., 105 Conn.App. 515, 527, 939 A.2d 16 (2008); In re Stanley D., 61 Conn.App. 224, 230, 763 A.2d 83 (2000). If at least one pleaded ground to terminate is found, the court must then consider whether the facts, as of the last day of trial, establish, by clear and convincing evidence, that termination is in the child's best interest. See In re Anthony H., 104 Conn.App. 744, 756, 936 A.2d 638 (2007). " In the dispositional phase . . . the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent's parental rights is not in the best interests of the child. In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in [§ 17a-112(k)]." (Internal quotation marks omitted.) In re Luciano B., 129 Conn.App. 449, 479, 21 A.3d 858 (2011); In re Joseph L., 105 Conn.App. 515, 529, 939 A.2d 16, cert. denied, 287 Conn. 902, 947 A.2d 342 (2008). Procedurally, it is permissible to hear evidence as to both adjudicatory and dispositional phases at the same trial without first determining if the state has proven a statutory ground for adjudication before consideration of the dispositional question. See In re Jason P., 41 Conn.Supp. 23, 24, 549 A.2d 286 (1988); In re Juvenile Appeal (84-AB), 192 Conn. 254, 257, 471 A.2d 1380 (1984); State v. Anonymous, 179 Conn. 155, 172-73, 425 A.2d 939 (1979); Practice Book § 35a-7.
Failure to Rehabilitate
General Statutes § 17a-112(j)(3) provides, in relevant part, that termination of parental rights is warranted if the trial court, in the adjudicative phase, finds by clear and convincing evidence that " (B) the child (i) has been found by the Superior Court or the Probate Court to have been neglected or uncared for in a prior proceeding . . . and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . ."
The factual determination for this court is whether the parent has achieved rehabilitation as contemplated under § 17a-112(j)(3)(B), that is, rehabilitation sufficient to render the parent able to care for the child. " Personal rehabilitation as used in [Section 17a-112] refers to the restoration of a parent to his or her former constructive and useful role as a parent . . . [The statute] requires the trial court to analyze the [parent's] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time . . . [The statute] requires the court to find, by clear and convincing evidence, that the level of rehabilitation [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). [T]he critical issue [in assessing rehabilitation] is . . . whether the parent has . . . gained the ability to care for the particular needs of the child at issue." (Internal quotation marks omitted.) In re Trevon G., 109 Conn.App. 782, 952 A.2d 1280 (2008).
Mother's Default
Despite in-hand service of process and her participation in the neglect proceedings, Mother has never appeared in this action. As noted, Mother failed to appear at the initial hearing on February 11, 2016 and following a finding of proper service and a military affidavit, Mother was defaulted for failure to appear. (Woods, J.) Practice Book § 32a-2(a) provides that child protection proceedings, including petitions for termination of parental rights, are civil. As is the case in civil matters, " [t]he entry of a default constitutes an admission by the defendant of the truth of the facts alleged in the complaint"; DeBlasio v. Aetna Life & Casualty Co., 186 Conn. 398, 400, 441 A.2d 838 (1982). Thus, Mother's default conclusively establishes that the petitioner has prevailed on each of the elements at issue in the adjudicatory phase of this proceeding. Under Practice Book § 35a-8, when a party is defaulted for failing to appear in a termination of parental rights proceeding, the court may then take evidence and render judgment. Since a termination of parental rights petition seeks to permanently sever the parent-child relationship and implicates due process rights of parents and children, the court has considered the petitioner's evidence on the specific adjudicatory grounds alleged.
Adjudicatory Grounds
In the Termination of Parental Rights petition filed January 15, 2016, DCF alleges the following adjudicatory grounds: As to Mother and Father, Ground B-1, that the child has been found in a prior proceeding to have been neglected or uncared for and Mother and Father have failed to achieve the degree of personal rehabilitation that would encourage the belief that within a reasonable time, considering the age and needs of the child, the parents or either of them could assume a responsible position in the life of the child, General Statute § 17a-112(j)(3)(B)(I).
Antecedent Proceedings
On May 20, 2014, Mother and Father entered written pleas of nolo contendere to the petition filed by DCF which alleged that Nyair was neglected, Nyair was adjudicated neglected and committed to the care and custody of the Commissioner of the Department of Children and Families. (Dannehy, J.) Mother and Father were provided with specific steps for reunification with Nyair.
Reasonable Efforts
General Statutes Section 17a-112(j)(1) requires that the court find, by clear and convincing evidence, that DCF made reasonable efforts to locate the respondent parent(s) and made reasonable efforts to reunify the child with the respondent parent(s). Therefore, the court must first determine in the adjudicatory phase of a termination of parental rights proceeding, whether DCF has met its burden to prove that it has made reasonable efforts to locate the parents and to reunify the child with the parents. See In re Melody L., 290 Conn. 131, 148-49, 962 A.2d 81 (2009).
With respect to the statutory element of reasonable efforts to locate and reunify required for termination pursuant to General Statutes § 17a-112(j)(1), the court finds the following by clear and convincing evidence.
Reasonable Efforts to Locate the Respondents
DCF's efforts to locate Mother and Father have not been questioned. Mother was served with the petition in-hand by a state marshal and Father was served with the petition at his usual place of abode. The court finds by clear and convincing evidence that DCF made reasonable efforts to locate Mother and Father and accomplished the same.
Reasonable Efforts to Reunify the Child with the Respondents
General Statutes Section 17a-112(j)(1) requires that in a termination of parental rights proceeding, the court also find, by clear and convincing evidence, that DCF made reasonable efforts to reunify the child with the respondent parent(s). The word reasonable is the linchpin which the department's efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof. In re Shaiesha O., 93 Conn.App. 42, 48, 887 A.2d 415 (2005). " Although [n]either the word reasonable nor the word efforts is . . . defined by our legislature or by the federal act from which the requirement was drawn . . . [r]easonable efforts means doing everything reasonable, not everything possible." (Internal quotation marks omitted; citation omitted.) In re Ryan R., 102 Conn.App. 608, 619, 926 A.2d 690 (2007); In re Mariah S., 61 Conn.App. 248, 255, 763 A.2d 71 (2000). " [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 Vincent B., 73 Conn.App. 637, 641, 809 A.2d 1119 (2002), cert. denied, 262 Conn. 934, 815 A.2d 136 (2003). " [T]he department must prove either that it has made reasonable efforts to reunify or, alternatively, that the parent is unwilling or unable to benefit from reunification efforts. Section 17a-112(j) clearly provides that the department is not required to prove both circumstances. Rather, either showing is sufficient to satisfy this statutory element." In re Jorden R., 293 Conn. 539, 552, 979 A.2d 469 (2009). Our Appellate Court has held that the court must look to events prior to the date the petition was filed, to determine whether reasonable efforts at reunification were made. In re Shaiesha O., supra, 47.
I. Mother
Mother was born June 25, 1994. She grew up in Hartford. She dropped out of high school in her senior year when she was five months pregnant. She began smoking marijuana when she was fourteen. Her father was shot and killed in 1995. Mother has an extensive criminal record including six months incarceration. She has a conflictual relationship with her mother and others and frequently makes threats when she is angry. Her mother is the protected person under protective orders. Her mother reports that when she got angry, Mother would bang her head against the wall. Mother has a diagnosis of Axis 1 Adjustment Disorder.
Reasonable Efforts to Reunify Mother and Nyair
At the time that Nyair was placed in foster care, Mother was incarcerated. When it was learned that she was pregnant with another child, she was transferred to Amethyst House in New Haven. While at Amethyst House, DCF provided services and counseling to assist Mother with her mental health and domestic violence issues, anger management and parenting skills. When released from Amethyst House in December 2014, DCF referred Mother to New Beginnings, Today's Youth, NOVA for domestic violence, Intensive Family Preservation. DCF referred Mother to Wheeler Clinic for individual counseling, Supportive Housing (Connections), the Reunification Readiness and Care 4 Kids Programs. DCF provided bus passes and supervised visitation with Nyair. The court finds by clear and convincing evidence that DCF made reasonable efforts to reunify Mother and Nyair.
Adjudication of Mother
At the time that Nyair was adjudicated neglected, Mother was incarcerated. The specific steps ordered on May 20, 2014 directed Mother to utilize all rehabilitative services available to her within the Department of Corrections while she was incarcerated. When Mother was released from Amethyst House in December 2014, DCF referred her to New Beginnings, Today's Youth, NOVA for domestic violence, Intensive Family Preservation to modify her behavior and improve her parenting skills. Mother failed to participate in any of those programs. DCF referred Mother to Wheeler Clinic for individual counseling and despite the requirement that she participate in the Wheeler Clinic program as part of her adult probation conditions, Mother failed to participate. Adult Probation Officer, Angela DeNicola testified that there is an active violation of probation warrant outstanding for Mother. On March 3, 2016, Mother told social worker Freda Griffin that she had no intention of participating in the Hartford Juvenile Court proceedings affecting Nyair and that she " was not going to worry about Nyair." She told Griffin that she was " not bonded" with Nyair and that her focus was on her newborn child Zharia. The court finds by clear and convincing evidence that Mother has failed to achieve the degree of personal rehabilitation that would encourage the belief that within a reasonable time, considering the age and needs of Nyair, she could assume a responsible position in the life of Nyair.
General Statutes § 17a-112(k) Criteria
Each of the seven statutory criteria has been duly considered and the court's findings, based on clear and convincing evidence, are as follows.
1. The timeliness, nature and extent of services offered, provided and made available to the parent and child to facilitate reunion of the child with the parent.
The court finds that the services offered and provided by DCF to facilitate reunification were timely and appropriate.
2. Whether DCF has made reasonable efforts to reunite the family pursuant to the Federal Adoption and Child Welfare Act of 1980, as amended.
Mother failed to appear in this action or maintain contact with DCF. The court finds that the petitioner made reasonable efforts to reunify Mother as required by the Federal Adoption and Child Welfare Act of 1980, as amended, to the extent possible.
3. The terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order.
As noted, Mother failed to appear in this proceeding or establish contact with DCF. Accordingly, DCF was prevented from issuing any court orders beyond the specific steps pursuant to which Mother has failed to fulfill her obligations.
4. The feelings and emotional ties of the child with respect to the child's parent, and any person who has exercised physical care, custody or control for at least one year and with whom the child has developed significant emotional ties.
Nyair has had limited or no contact with Mother since he was taken into DCF custody. Nyair has resided in the same foster home for 29 months and refers to his foster parents as " Mommy" and " Daddy."
5. The age of the child. At the time of the TPR trial, Nyair was three years old.
6. The efforts the parent has made to adjust such parent's circumstances or conduct or conditions to make it in the best interests of the child to return such children to the parental home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as a part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions, and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child
There was no evidence of any efforts by Mother to maintain contact with Nyair.
7. The extent to which the parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable acts or conduct of the other parent of the child, or the unreasonable acts of any other person, or by the economic circumstances of the parents.
There was no claim or evidence presented to indicate the existence of any such act, conduct or circumstance which prevented Mother from maintaining a meaningful relationship with Nyair.
Having carefully considered and weighed all the credible testimonial and documentary evidence admitted at trial and made the factual findings set forth herein, the court independently finds, by clear and convincing evidence, that termination of the parental rights of Mother is in Nyair's best interests. The Termination of Parental Rights petition is granted as to Mother.
II. Father
Father was born in Jamaica in 1993. He moved to Hartford with his father in 2010. Father reports that his home life was stressful in that his family did not value education and he was given an ultimatum to drop out of high school so he could work to help provide for his family or leave the home. Father reports that he chose to leave the home and finished high school but became transient, living with relatives and friends. Father has never served in the military. Father's only criminal history is a misdemeanor arrest in Windsor on October 31, 2013 which the Social Study reports involved a disagreement with a cousin and that the charges were nolled.
Reasonable Efforts to Reunify Father and Nyair
DCF referred Father to parenting education classes at Restoring the Strength of Families, substance abuse and mental health evaluations at Wheeler Clinic and housing information. DCF provided Father with bus passes and supervised visitation with Nyair. The court finds by clear and convincing evidence that DCF made reasonable efforts to reunify Father and Nyair.
The Child
When the ex parte order of temporary custody was granted on February 11, 2014, Nyair was fifteen months old and living with his Mother. On February 25, 2014, Nyair passed a multidisciplinary evaluation however his speech appeared to be delayed at the time. The Social Study dated February 8, 2016 reports that Nyair has " no obvious mental health concerns" but has " age appropriate temper tantrums." He had surgery on August 29, 2014 to correct an undescended testicle and bi-lateral hernias. Despite questions about his hearing following an initial test, Nyair's hearing was found to be within normal range after a procedure was conducted to remove fluid from his eardrums. Nyair has eczema. His latest physical exam on October 30, 2015 found no asthma, no diabetes and no known allergies. Nyair participated in Birth to Three services and has been screened for autism. Despite earlier concerns, Exhibit G notes that after additional testing " Nyair did not present with any characteristics usually associated with a child on the autism spectrum." At a PPT conference it was determined that Nyair would require and was eligible for early intervention services.
Adjudication of Father
When the ex parte order of temporary custody was granted on February 11, 2014, Nyair was living with his Mother and his paternity had not been established. During DCF's investigation, Father was interviewed, questioned paternity and expressed his inability at the time to care for Nyair based on his lack of employment and stable housing. After genetic testing established his paternity, Father entered a nolo contendere plea to the neglect allegations on May 20, 2014. The Termination of Parental Rights petition alleges " At the time of the adjudication, the presenting problems were Mr. M. had unstable housing and no income." Specific steps to address Father's presenting issues were provided and ordered for his rehabilitation and reunification with Nyair. The specific steps (Exhibit A) required Father, inter alia, to attend parenting education classes, submit to substance abuse and mental health evaluations, obtain adequate housing and legal income and visit the child as often as DCF permits. The goals identified on the final specific steps ordered were " Enhance Parent skills; maintain sobriety; engage in mental health treatment."
The court notes that it is commonplace for DCF to check all (or most) of the boxes on the prescribed form even in cases where there is no identified issue requiring correction such attendance at a domestic violence program, as is the case with Father's specific steps.
With regard to the requirement that Father submit to a substance abuse evaluation, Father attended the required evaluation at the Wheeler Clinic on December 3, 2014. The DCF Social Study (Exhibit G) acknowledges that Father's toxicology screen was negative for all substances and no treatment was recommended. The Social Study further states there is no history of Father abusing alcohol or medicine and his sobriety has not been challenged.
On the same day as the substance abuse evaluation, Father participated in a mental health assessment at Wheeler Clinic which was conducted by a LCSW. Father denied any history of mental health issues with himself or any paternal relatives. The LCSW evaluator gave Father an Axis I diagnosis of adjustment disorder, unspecified. The evaluator recommended that Father attend three counseling sessions to support Father with the stressors related to the neglect proceedings and to improve his interpersonal relationships to achieve employment and housing. Father attended the first counseling session but arrived late for the second session and the therapist canceled the session. Father was to call and reschedule the session but failed to do so. Father asserted that he had obtained employment and that his work schedule interfered with his ability to attend the second and third sessions.
With respect to Father's housing, DCF reported Father has a history of unstable housing having lived with Mother for short period of time, his grandmother and various friends. As of February 2016 Father has resided with Justina B. Father has provided DCF with a copy of an apartment lease which lists Father and Justina B. as the tenants. Father's testimony that DCF visited the apartment on March 22, 2016 and noted no safety concerns was unchallenged. Father testified that he has known Justina B. for four years and that they are engaged to be married on October 8, 2016. Justina B. is employed and on January 11, 2016, gave birth to a son Wyatt. Wyatt's paternity had not been determined at the time of trial but Father testified that even if it is determined that he is not Wyatt's biological father, he is committed to raising him as his own child.
In April 2015, Father obtained employment at Grote & Weigel where he earned minimum wage. Father reported that he was laid off in January 2016 due to a slowdown in business. He returned to work at his former employer at the end of April and during the interim, he sought and obtained employment through a temporary staffing agency. At the time of trial, Father maintained that he continued to be employed full time at minimum wage and had recently received an offer for a " better job." Father, however, did not provide proof of his employment as requested by DCF.
Father's Visitations with Nyair
Father's history of attending supervised visits with Nyair was initially marked by his failure to arrive punctually. Some visits were terminated when Father was so late that the social worker could wait no longer. Father claims that he had difficulty attending the visits due to his lack of transportation, missed bus connections and in some cases, his inability to leave work early. The Social Study (Exhibit G) reports that weekly visits commenced July 22, 2014 and notes Father's attendance as follows: July 2014, 1 of 2, August, 1 of 3, September, 5 of 5, October, 3 of 4, November, 3 of 4, December, 5 of 5 and January 2015, 2 of 4. The Social Study notes that after January 31, 2015, Father did not have a visit with Nyair for " several weeks" due to the lack of available DCF staff. The Study reports that " effective 04-17-15" Father was authorized a weekly one-hour visit with Nyair. On 04-28-15, Father's motion to increase weekly visitations from one hour to two hours was granted on the condition that Father attend three consecutive visits. (Dannehy, J.) At that time, the visits were scheduled for 3:00 to 4:00 p.m. Father reported that his employment and bus connections made it difficult to attend. When Father failed to comply with the condition, the one-hour visits were restored on May 19, 2015. Father requested that the visits be scheduled on weekends but his request was denied due to unavailability of staff. The Social Study reports that on 06-05-15, at Father's request, the visits were re-scheduled later in the day on Thursdays from 3:30 to 4:30 and that Father has been " more consistent." Father's attendance is noted as follows: June, 1 of 2, July, 4 of 4, August, 3 of 3, September, 3 of 3, October, 2 of 4, November, 3 of 3, December, 4 of 4 and January 2016, 1 of 1. Page 3 of the Status Report dated January 11, 2016 (Exhibit F) reports that at the visits, " Father exhibits appropriate interaction with Nyair. He is usually nurturing and attentive to his son's needs." DCF acknowledges that Father successfully completed parenting classes at Restoring Strength of Families in June 2014 but claims that Father has not demonstrated that he has achieved any insight into his responsibilities as a parent. DCF cites Father's failure to demonstrate any insight into Nyair's emotional needs. DCF social worker Freda Griffin testified that Father continues to bring Justina B. and Wyatt to visits and introduced them to Nyair as his " stepmother and brother" which DCF claims is confusing to Nyair. DCF also claims that Father's failure to attend or avoid arriving late to visits affects Nyair's behavior. Page 6 of the Addendum to the Social Study dated May 2, 2016 (Exhibit H) reports that Nyair has a history of aggressive behavior towards adults and staff in day care centers which has led to his discharge or suspension from two centers. Nyair was discharged from KinderCare for aggressive behaviors (hitting, spitting, kicking and swearing) and suspended from Manchester Early Learning Center for similar behaviors.
There is no explanation of why the Study reports some months as having four weekly visits and others only one or two.
Page 9 of the Status Report (Exhibit F) indicates that DCF invited Justina B. to attend visits.
" An inquiry regarding personal rehabilitation requires a historical perspective of the respondent's child caring and parenting." (Internal quotation marks omitted.) In re Kyara H., 147 Conn.App. 855, 867, 83 A.3d 1264 (2014). Father's child caring history is limited. Nyair is his first born child and he recently has professed to be the biological or de facto father of Justina B.'s child Wyatt.
As noted, Father testified in this matter. On cross examination he was asked by counsel for the child whether he understood Nyair's special needs. Father showed his understanding of Nyair's needs by his reply that Nyair participated in Birth to Three, was initially thought to be autistic but only has developmental delays especially with his speech. He also commented on Nyair's surgery for an undescended testicle and Nyair's challenges to control his anger. The Social Study dated February 8, 2016 (Exhibit G) at page 16 reports that " Mr. M. has been noted to be affectionate and he is usually able to handle Nyair well during his tantrums."
Conclusion
It is undisputed that " [t]he right of a parent to raise his or her children has been recognized as a basic constitutional right. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). Since the termination of parental rights results in a complete severance of the legal relationship between a child and his or her parent, terminating one's parental rights has been referred to as " a most serious and sensitive judicial action." In re Barbara J., 215 Conn. 31, 44, 574 A.2d 203 (1990). As the termination of parental rights involves the ultimate interference of the State in the family unit and severs the legal relationship between child and parent, our courts must require strict adherence to statutory standards. See In re Migdalia M., 6 Conn.App. 194, 203, 504 A.2d 533, cert. denied, 199 Conn. 809, 508 A.2d 770 (1986). The standard of proof to be applied in the finding of a statutory ground to terminate parental rights is clear and convincing evidence. Connecticut General Statutes Sec. 17a-112(j). Practice Book Sec. 32a-3(b). The standard of clear and convincing evidence " should operate as a weighty caution upon the minds of all judges, and it forbids relief whenever the evidence is loose, equivocal or contradictory." (Internal quotation marks and citation omitted, In re Tyqwane, 85 Conn.App. 528, 539, 857 A.2d 963 (2004).) " Our Supreme Court has denounced laxity in procedural safeguards at termination proceedings . . ." (Citation omitted; internal quotation marks omitted.) In re Juvenile Appeal (Docket No. 10155), 187 Conn. 431, 437, 446 A.2d 808 (1982). Moreover, " [I]nsistence upon strict compliance with the statutory criteria before termination of parental rights and subsequent adoption proceedings can occur is not [however] inconsistent with concern for the best interests of the child . . . A child, no less than a parent, has a powerful interest in the preservation of the parent-child relationship . . ." In re Carla C., 167 Conn.App. 248, 264-65, 143 A.3d 677 (2016).
The decisive consideration in assessing the adjudicatory ground of failure to rehabilitate requires a determination of whether the respondent parent has sufficiently addressed the issues and parental deficiencies that gave rise to DCF involvement to the degree that the parent can, considering the age and needs of the child, assume a responsible position in the child's life, or will be able to do so in the reasonably foreseeable future. Father has addressed the " presenting problems" alleged by DCF in the petition. He has secured housing, obtained legal income, consistently improved his attendance at visits with Nyair and demonstrated an understanding of Nyair's needs. Personal rehabilitation does not require that a parent be a perfect or ideal parent who is capable of providing his or her child adequate care without support services.
" The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State." (Citations omitted.) In re Carla C., 167 Conn.App. 248, 264, 143 A.3d 677 (2016).
On the basis of the credible testimony and the documentary evidence, the court finds that DCF has failed to sustain the burden to prove, by the rigorous standard of clear and convincing evidence, that Father has failed to achieve the degree of personal rehabilitation which would reasonably encourage a belief that at some future date he can assume a responsible position in Nyair's life as required by General Statutes § 17a-112(j)(3)(B). The Termination of Parental Rights petition is denied as to Father.
The court has not reached its decision without reservations. Nyair is reported to be doing well in his foster home. However, " As a matter of statutory fiat, consideration of the best interests of the child cannot vitiate the necessity of compliance with the specified statutory standards for termination . . . Similarly, questions concerning the ultimate custodial placement of the child may not be intermingled with the issues of termination . . . [A] parent cannot be displaced because someone else could do a better job of raising the child . . ." (Citations omitted; emphasis added; footnote omitted; internal quotation marks omitted.) In re Carla C., 167 Conn.App. 248, 264-65, 143 A.3d 677 (2016).
Having denied the petition, custody of Nyair is to remain with DCF until further order of the court. DCF is to continue efforts to reunite Nyair with Father in a measured manner so long as Father is able to convincingly demonstrate that he continues to make progress in maintaining stable housing and legal income, consistently and punctually attends all scheduled visitations with Nyair, medical and dental appointments, school-related meetings and all appointments with DCF. Should Father fail to demonstrate his willingness or ability to comply with the forgoing within a reasonable period of time, DCF should file a new petition without delay.
So Ordered. [*]In accordance with Connecticut General Statutes § 46b-142(b) and Practice Book § 32a-7, the names of the parties involved in this case are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Superior Court.