In re Paetyn R.

Full title: IN RE PAETYN R.[*]

Court: Superior Court of Connecticut

Date published: Oct 9, 2018

W10CP16017284A (Conn. Super. Ct. Oct. 9, 2018)

Opinion

W10CP16017284A

10-09-2018

IN RE PAETYN R.[*]

Boland, J.T.R.

UNPUBLISHED OPINION

File Date: October 10, 2018

OPINION

Boland, J.T.R.

This memorandum addresses a petition seeking the termination of the parental rights of C.K., mother of Paetyn R., born December 6, 2015, and of John Doe, unnamed and unknown father of the child. Also before the court are a motion filed by the maternal great aunt, R.C., seeking a transfer of guardianship to her and her later motion requesting that the court open the trial so she might offer additional evidence, and finally a motion seeking approval of a permanency plan filed with respect to this child.

For the reasons set forth below, the petition for termination of parental rights and the motion for approval of the permanency plan are granted, and the motions for transfer of guardianship and to open the trial to permit new evidence are denied.

I. Procedural Background

A. Filings by Department of Children and Families ("DCF")

Paetyn’s present involvement with this court began on September 19, 2016, when the Commissioner of the Department of Children and Families filed herein both a motion for an emergency order of temporary custody, and a petition alleging that the child had been neglected for reasons other than being impoverished by being denied proper care and attention, physically, educationally, emotionally, or morally; or by being permitted to live under conditions, circumstances or associations injurious to well-being. The court (Spellman, J.), granted that motion on an ex parte basis. Mother was served in hand with both pleadings. She appeared on the date scheduled for hearing on the take custody order, September 27, 2016, and was appointed counsel. Judge Spellman sustained the OTC on that occasion.

A hearing on the neglect petition was held on January 25, 2017, and Judge Spellman adjudicated the child to be neglected, and committed her to DCF.

Preliminary specific steps outlining the items needed to reunify this child with her mother were issued along with the September 19 OTC, and final specific steps were issued on January 25.

On September 7, 2017, Judge Spellman approved a permanency plan of termination of parental rights and adoption. On November 7, 2017, DCF filed the petition seeking termination of parental rights which is the focus of this memorandum. As to mother, the TPR petition alleges that after the earlier finding that Paetyn had been neglected, 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 the child, she could assume a responsible position in her life.

The papers that originated the neglect charges in this forum in 2016 named as father of this child one T.J. At the time of the initial filing, his whereabouts were unknown. DCF served those papers upon him by publication, but he failed to appear at either the September or the January hearings. By April of 2017, he was discovered to be in the custody of the Department of Corrections. On May 10, he appeared, was personally served with process, and was appointed counsel. The court on that occasion vacated an earlier order defaulting him for failure to appear, but did not otherwise modify the prior orders affecting Paetyn. When he appeared, T.J. filed a motion seeking paternity testing, which was granted. The results of that testing finally were made known on July 10, 2018, when it was disclosed that the likelihood that T.J. was the father of Paetyn was a biological impossibility. With his full approval he was accordingly removed from the case.

In light of Mr. J.’s earlier denial of paternity, DCF’s petition for termination of parental rights had characterized him as a putative father, and also named John Doe as an alternative father of the child. Service of the petition upon John Doe was ordered to be made by publication, which was done, and John Doe has failed to appear. He is defaulted on that basis.

As to John Doe, the petition alleges that (1) he has abandoned this child by failing to maintain any reasonable degree of interest, concern, or responsibility as to her welfare; (2) that after the earlier finding that Paetyn had been neglected, he 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 the child, he could assume a responsible position in her life; and (3) that there is no ongoing parent-child relationship between him and Paetyn, in that he has failed to meet 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 that relationship would be detrimental to the child’s best interests.

B. The Intervenors

On June 2, 2017, T.O moved to intervene, alleging she was a paternal great aunt and seeking, inter alia, guardianship of Paetyn. On July 12, this court allowed her intervention. She later moved to withdraw her motion with respect to guardianship, and on September 7 that was allowed. On October 3, she refiled a motion for permanent legal guardianship. On January 16, 2018, she unilaterally withdrew her motions to intervene and for guardianship and has not further participated in these proceedings.

On June 6, 2017, R.C. moved to intervene, alleging that she was a maternal great aunt, and seeking, inter alia, guardianship of Paetyn. Before the court had acted upon her motion, she moved to withdraw it, which was allowed. On October 18, she renewed her motion to intervene, indicating that her goal at that time was visitation and potentially to be awarded custody of Paetyn. On November 1, this court granted her leave to intervene only as a person of interest who would not be allowed to present evidence or participate in contested proceedings. On December 5, counsel appeared on her behalf and moved that guardianship be substituted for the earlier custody request. On January 24, Judge Spellman modified the November 1 order and removed its limitations upon her participation. On January 25, 2018, she moved for an immediate transfer of guardianship to her and her husband, A.C. Judge Spellman later consolidated that motion to be tried simultaneously with the petition for termination of parental rights, and so it is also before this court and is the further subject of this memorandum.

On June 20, 2018, S.J. moved to intervene, alleging she was a paternal great aunt and seeking, inter alia, custody of Paetyn. A hearing on that motion was scheduled for July 11. After T.J. was removed from the case on July 10, however, S.J.’s status as a paternal relative could no longer be established. She failed to appear on July 11, and her motion was denied.

C. Other Preliminary Details

There is no action pending in any other court which would affect the custody of this child, and this court has jurisdiction to enter orders with respect to her custody.

DCF filed the motion for permanency plan on June 8. It was originally scheduled to be heard on August 22 but was continued to the trial date.

The pending matters were tried to this court on July 19, 2018. Briefs were made permissive but ordered to be filed by August 16. The intervenor R.C. elected to file a brief, and the child’s attorney furnished a position statement. On October 4, R.C. moved to open the trial to allow her to introduce additional evidence.

II. Adjudication of the Petition

A. As to Mother

As to C.K., DCF is proceeding under General Statutes § 17a-112(j)(3)(B). This provides that a court may grant a petition for termination of parental rights of a parent if, by clear and convincing evidence, the court finds that (i) the child has been found ... to have been neglected, abused, or uncared for in a prior proceeding, or (ii) the child is now found to be neglected, abused, or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of the child has been provided specific steps to take to facilitate the return of the child to that parent, and that the parent 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 this life of this child. It is indisputably a matter of record, and this court thus finds, that pre-condition (i) of § 17a-112(j)(3)(B) is met; this court made a neglect adjudication here on January 25, 2017. Coincidentally, the child has also been in the custody of the commissioner since September 19, 2016, more than two years, and specific steps were then provided to C.K. to facilitate Paetyn’s return to her.

The question to be resolved is whether C.K. has achieved or failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time she could assume a responsible position in this child’s life considering her age and particular needs. "In order to terminate a parent’s parental rights under § 17a-112, the petitioner is required to prove, by clear and convincing evidence, that: (1) the department has made reasonable efforts to reunify the family; § 17a-112(j)(1); (2) termination is in the best interest of the child; § 17a-112(j)(2); and (3) there exists any one of the seven grounds for termination delineated in § 17a-112(j)(3)." In re James O., Jr., 322 Conn. 636 (2016).

The James O. opinion continues: "[w]hen the petitioner seeks to terminate a parent’s parental rights on the ground that the parent has failed to rehabilitate, ‘[t]he trial court is required, pursuant to § 17a-112, to analyze the [parent’s] rehabilitative status as it relates to the needs of the particular child, and further ... such rehabilitation must be foreseeable within a reasonable time.’ ... Therefore, the trial court must first determine the needs of the particular child before determining whether a parent has achieved a sufficient rehabilitative status to meet those needs." Id., 650-1 (Citations omitted.)

1. Paetyn’s Needs

Paetyn is two years and ten months of age at this time. At the time of her birth, her mother was seventeen years old. As a child, C.K. was herself committed to DCF care on account of significant mental health problems on the part of the maternal grandmother, A.K. Mother had spent the first eight months of 2015 in the home of A.K. under protective supervision. During her pregnancy, DCF placed her in a program for underage, at-risk mothers at St. Agnes Home in September of 2015. She remained there for a full year until early in September of 2016 when DCF learned that she had left that program. At the time she withdrew from that facility, she had stopped taking prescribed medications and was consuming a high volume of marijuana, and was reporting desires of terminating Paetyn’s life when the child was crying or upset. Mother placed Paetyn in the care of A.K., and left to take up residence with unnamed acquaintances. DCF responded to the obvious safety concerns raised by this history by applying for the OTC.

Paetyn was nine months old when that order entered. She was placed in the foster home of W.A., where she remains to this day. W.A. desires to adopt her. As with any child of her young age, Paetyn is entirely dependent upon adults for her material needs, including shelter, nutrition, education, medical care, and so on. In addition, she needs, as indicated in In re Davonta V., 285 Conn. 483, 494-5 (2008) "[s]table and continuous care givers [that] are important to normal child development. Children need secure and uninterrupted emotional relationships with the adults who are responsible for their care."

2. C.K.’s Response to Paetyn’s Needs

Mother has failed in practically every respect to demonstrate by any measure an ability to assume a responsible position in her daughter’s life.

First, she has what appear to be life-long mental health issues. Her diagnoses include Post Traumatic Stress Disorder, Major Depression, Reactive Attachment Disorder, all compounded by Polysubstance Use. She exhibits erratic mood swings. In the first three years of this child’s life, mother has been frequently transient and has lost contact with DCF and with Paetyn for extended periods of time. She has failed to engage in therapy to address her own mental health needs, and rejects taking medications that have been prescribed to her.

Next, her polysubstance use includes the frequent abuse of marijuana, and binge drinking although she is still only twenty years old. She refuses to submit to random drug testing. She spent five days at Stonington Institute for detox in 2016 and was discharged to a partial hospitalization program, but she arrived at that destination two days late and was discharged within the fortnight for unprescribed use of Xanax.

She has not been able to maintain a job or steady housing.

She has kept some meetings arranged with DCF, and attended some of the visits the Department scheduled between her and the child. In each category, she has also chalked up a number of misses.

Paetyn has been in foster care for more than two years. Mother is no closer today to resolving the issues that led to the child’s removal than she was when it first occurred. C.K. frankly admits that she had opportunities to succeed as a parent, but that her mental health and substance abuse problems rendered her unable to raise her daughter. While she does not consent to the termination of her parental rights, she indicated that her goal is not that custody be restored to her but that this court grant the aunt’s motion for guardianship, as that outcome would block adoption and leave the child in a home not overseen by DCF.

The conclusion I reach on the basis of the aggregated evidence is that it clearly and convincingly indicates that C.K. has not rehabilitated to a degree sufficient to justify the belief that within a reasonable time she could assume a responsible position in this child’s life. In fact, it is not a close question. I find, therefore, that DCF has proven its allegation of failure to rehabilitate as outlined in § 17a-112(j)(3)(B)(1).

B. As to John Doe

By clear and convincing evidence, petitioner has proven both that John Doe has abandoned Paetyn, as defined by § 17a-112(j)(3)(A), and that there is no ongoing parent-child relationship between them, as defined by § 17a-112(j)(3)(D).

According to In Re Sydnei V., 168 Conn.App. 538, 548-9 (2016), "Abandonment has been defined as a parent’s failure to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child, and maintain implies a continuing, reasonable degree of interest, concern, or responsibility and not merely a sporadic showing thereof ... To grant a termination of parental rights petition on the ground that there is no ongoing parent-child relationship ... the court must find that no parent-child relationship exists and that looking prospectively, it would be detrimental to the child’s best interest to allow time for such a relationship to develop."

The identity of Paetyn’s father is simply unknown, and so the conclusions that he has abandoned the child and likewise that there is no ongoing parent-child relationship are unavoidable. No further discussion of how this John Doe failed this child is needed, nor is there any uncertainty that leaving the matter open for a later determination of whether a parent-child relationship has developed would be anything other than detrimental to this child’s best interest.

C. Reasonable Efforts to Reunify

Next, it is essential to determine, as required by § 17a-112(j)(1), whether DCF has complied with the requirement set forth in § 17a-111b(a), that it make reasonable efforts to unite each parent with this child prior to termination of their parental rights.

On September 7, 2017, Judge Spellman approved the first permanency plan which proposed termination of parental rights and adoption. His determination permits the exception to this reasonable efforts finding authorized by § 17a-111b(a)(2), as the plan was other than reunification. On that date, however, the court did not preclude further attempts at reunification. DCF thus continued its efforts to reunify the child with C.K.

In this trial DCF proved, by clear and convincing evidence, that it made reasonable efforts to identify and contact John Doe. It proved by the same standard that it was unable to provide services to John Doe due to his failure to come forward after the TPR petition was filed.

As to C.K., the court finds by clear and convincing evidence that DCF made reasonable efforts to reunify her with Paetyn, by making her aware of her individual issues and deficits that led to the child’s removal through its declaration and then for its part complying with the specific steps addressing said issues. She was alerted to her serious mental health and substance abuse issues, and failed to adequately address them. She was haphazard about visits with Paetyn and about attending meetings with DCF representatives and referrals. She has failed to obtain stable housing or employment. Despite her being made aware of how she had to adjust her circumstances to meet Paetyn’s needs, and the department’s efforts to assist her in doing so, C.K. remains unable and/or unwilling to benefit from the reasonable reunification services offered to her. The court finds at this time that the panoply of individual serious issues afflicting C.K. clearly and convincingly render her unable and/or unwilling to benefit from further reasonable reunification efforts with her child in a timely manner, and thus that further efforts at reunification are not appropriate in this case.

III. Best Interest of Paetyn

§ 17a-112(j)(2) requires that this court separately determine, in conjunction with the findings just made, that the termination of the parental rights of each of these respondents is in Paetyn’s best interest. Again, the standard of proof is clear and convincing evidence.

In making this determination, one must understand that "[t]he best interest standard ... is inherently flexible and fact specific and gives the court discretion to consider all of the different and individualized factors that might affect a specific child’s best interest." In re Shanaira C., 297 Conn. 737, 760 (2010). Essentially, "[t]he best interests of the child include the child’s interests in sustained growth, development, well-being, and continuity and stability of its environment." In re Baciany R., 169 Conn.App. 212, 227 (2016). In assessing those interests:

The court must consider the age of each child, the educational, medical, psychological (and sometimes psychiatric) needs of the child, the relationship that may exist ... with current caregivers and prior caregivers, the length of time the child has been in care and where, the current stability of the child or lack of it, and the various bonds the child has with various interested parties. This list is not exhaustive but is a good starting point when analyzing the situation to determine what is in the best interest of the child. Deeds, misdeeds, circumstances or events cannot cause the court to rule without consideration of the child’s best interest at present. How it might have ruled had the deeds, misdeeds, circumstances or events not happened is not relevant to the issue at hand. What might have been in the child’s best interest at the inception of the case may no longer be in his or her best interest today.

In re Noella A., Superior Court, Judicial District of New London, Juvenile Matters at Waterford, D.N. K09CP09011902A et al. (March 24, 2011, Mack, J.).

Paetyn was in C.K.’s care for just nine months, and left that care when C.K. had herself just turned eighteen. The removal was the result of C.K.’s descent into an abyss of psychological dislocation amplied by her use of illegal drugs, and was required due to C.K.’s confessed impulses to harm or even kill the child. For over two years now C.K. has not been able to benefit from therapies offered to her in order to address her own needs. She went from July through December of 2017 without visiting Paetyn. She then recommenced visits on a two-hour, twice-per-month basis which lasted until May of 2018 when she again stopped her visits with the child as a result of her own "difficult times"; she has seen the child only once in the past four months. It is obvious that she is fundamentally unable and unfit to tend to even the most basic needs of her daughter and cannot be considered to be a resource for this child on any level.

John Doe’s lack of identity and his total absence from this child’s life are definitive proof that she cannot look to him as a resource on any level.

Paetyn has lived for more than two years in the home of a prospective adoptive foster mother who is ready, willing, and able to adopt her. The foster mother attends satisfactorily to all of the child’s basic needs. Paetyn is thriving in all measurable aspects of her development. She is in a Birth-to-Three program to assist with communication skills and is benefitting from that activity. She is up to date on all medical and dental appointments and has no remarkable deficiencies in either category. Paetyn calls this foster parent "Mom" and the two are very bonded in a loving relationship. Paetyn gives no indication that she desires other than to remain permanently in the foster mother’s care. Termination of the parents’ rights will not force Paetyn into the population of children awaiting rescue by an unidentified adoptive family that may never be found.

The vacuum existing in her biological family makes inescapable the conclusion that termination of the parental rights of C.K. and John Doe is in her best interest.

IV. Mandatory Findings

§ 17a-112(k) requires that the court make written findings as to the following specific criteria:

(1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent

Mother: DCF provided C.K. with assistance in assessing and overcoming substance abuse issues; in overcoming her challenging mental health issues; in counselling to address those two conditions; in educating herself to the duties of a parent, including how to provide for her daughter’s basic survival needs; in maintaining a relationship with her daughter through frequent and productive visits; and in finding a stable home and job.

Father: DCF committed itself to delivery to father of the same array of services contemplated by this statute, in the form of the specific steps which were entered here in September of 2016 and again in January of 2017. His subsequent decision not to inform the department of his whereabouts rendered actual provision of the services impossible.

(2) Whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption and Safe Families Act of 1997, as amended from time to time

Mother: DCF made reasonable efforts to reunify her with Paetyn, by making her aware of her individual issues and deficits that led to the child’s removal through its declaration and then for its part complying with the specific steps addressing said issues. She was alerted to her serious mental health and substance abuse issues, and offered assistance in addressing them. A visitation regime was set up for her.

Father: DCF committed itself to delivery to father of the same array of services contemplated by this statute, in the form of the specific steps which were entered here in September of 2016 and again in January of 2017. His subsequent decision not to inform the department of his whereabouts made his reunification with this child impossible.

(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

Mother: The specific steps twice ordered for mother directed that DCF provide her assistance in assessing and overcoming substance abuse issues; in overcoming her challenging mental health issues; in counselling to address those two conditions; in educating herself to the duties of a parent, including how to provide for her daughter’s basic survival needs; in maintaining a relationship with her daughter through frequent and productive visits; and in finding a stable home and job. DCF fulfilled its part of those orders. C.K. did not.

Father: The specific steps were directed at DCF with respect to father as well. His subsequent decision not to inform the department of his whereabouts made the department’s actual performance in accordance with those orders impossible.

(4) The feelings and emotional ties of the child with respect to the child’s parents, any guardian of such child’s person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties

Mother: Paetyn is too young to articulate the depth of her feelings towards mother, especially as she has been in foster care since she was nine months old. It is reported that when visits were taking place, several months ago, Paetyn was comfortable in C.K.’s presence, but did not demur when the time came to leave.

Father: Paetyn is unaware of the existence of John Doe and there are no feelings towards him on her part.

Other Significant Persons: Paetyn’s feelings towards W.A. are reportedly very positive and loving, as W.A. is now her sole functioning parent. Paetyn’s feelings towards R.C. are positive, and she enjoys her play dates with this aunt.

(5) The age of the child

Paetyn was born on December 6, 2015, and is now two years and ten months of age.

(6) The efforts the parent has made to adjust such parent’s circumstances, conduct, or conditions to make it in the best interest of the child to return such child home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions, and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child

Mother: Other than visiting, sporadically, mother has made almost no effort to adjust her own circumstances to make it in Paetyn’s interest to be reunified with her. She has done nothing effective to address her own substance abuse and mental health issues. She has allowed hiatuses of several months to occur between visits, and there is no indication that she attempted during those absences to contact or communicate with the foster mother or with her DCF social worker.

Father: None

(7) The extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent

Mother: The available evidence indicates that those interested in fostering a meaningful relationship between Paetyn and C.K. have all acted reasonably towards that goal, and that none of them can be faulted as preventing that from occurring. Despite her not having a job, mother has somehow been able to provide for her own needs in the past two years without informing DCF or the court how that has been accomplished; hence, there is no basis upon which to conclude that her economic circumstances precluded her addressing her identified deficiencies.

Father: There is no indication that the behavior of anyone other than himself impeded his making such adjustments, and nothing is known of his financial circumstances.

V. The Guardianship Petition

The real dispute in this case is whether, by way of disposition, this court ought to grant R.C.’s motion for transfer of guardianship.

A. Standard of Decision and Burden of Proof

When ruling upon a motion for guardianship, "the court must first determine whether it would be in the best interest[s] of the child for guardianship to be transferred from the petitioner to the proposed guardian ... [Second,] [t]he court must then find that the third party is a suitable and worthy guardian." In re Mindy F., 153 Conn.App. 786, 802 (2014). Though that court numbered the two criteria "first" and "second," it indicated that the sequence in which they must be determined is not rigidly prescribed. The decision goes on to note that in the ordinary case, "the moving party has the burden of proof that the proposed guardian is suitable and worthy and that transfer of guardianship is in the best interests of the child." This court must initially address whether this is "the ordinary case," or whether the burden of proof should be reallocated.

R.C. has claimed throughout that a rebuttable presumption exists in her favor as to both of these criteria. She bases that premise upon her status as a blood relative, which cannot be denied, as well as upon her eligibility to be licensed as a foster care provider by DCF. In her brief, she cites § 46b-129(j)(2) in support of her argument, although that subsection outlines a court’s dispositional options upon a finding of neglect and is silent as to any discussion of rebuttable presumptions. Disposition following the neglect adjudication occurred long ago in this particular action.¹ Subsection (3) includes the rebuttable presumption postulate, and makes it applicable to the moment that this case is now in, i.e., that of post-termination disposition. § 46b-129(j)(3) relates to certain "caregivers," and provides that they are entitled to a rebuttable presumption of suitability and worthiness as guardians and as the persons who can best meet the child’s best interest. Within that category of "caregivers" are both relative caregivers and persons licensed or approved by DCF to provide foster care pursuant to § 17a-114.

1 Specifically, the neglect adjudication and the commitment to DCF occurred on January 25, 2017. R.C., though undoubtedly aware of these proceedings at all pertinent times, did not definitively intervene here until ten months later.

Clearly, R.C. is not a "caregiver" in any present or historical sense. Rather, she argues, her possession of the adjectival status of "relative" or "licensed foster care provider" entitles her to the presumption, and forces upon petitioner the burden of rebutting the presumption on the two criteria under scrutiny. She bases this contention upon case law rather than upon explaining why an apparently inapplicable statute is nonetheless relevant. Principally, she relies upon In re Brysin R., Superior Court, judicial district of Tolland, D.N. T11 CP10 015941-B, (2012; Simon, J.). and In re Yarisha F., Superior Court, judicial district of Middlesex, D.N. H12 CP06 10882-A (2009; Wilson, J.).²

2 Unnoted in her brief is the detail that the appellate court reversed this decision; see, In re Yarisha F., 121 Conn.App. 150 (2010). The reversal targeted the trial court’s lack of adherence to the Interstate Compact on the Placement of Children, governed by General Statutes § 17a-175, a detail not present in the case at bar. Still, to cite a decision reversed eight years ago without mentioning that history of the case is unusual.

Brysin settled a contest over where to place a committed child after it had found that the child had been permitted to live under conditions and circumstances injurious to his wellbeing. The court decided in favor of an aunt. The memorandum of decision makes clear that simply on the merits, the court found her to be at least as strong a resource for the child in her own right as was the foster mother. Given the practical equivalence of the two competitors for custody, the court merely noted as an additional factor in the aunt’s favor that it took "into consideration as a factor the placement of a child with family members given what appears to be a strong legislative intent and DCF policy." The court did not explain the source of that intent or that policy, and more to the point, did not discern in either any presumption favoring the aunt over the foster mother. It simply decided, in light of complex circumstances, that the aunt would better attend to the child’s best interest.

The Yarisha court did have before it a petition for termination of parental rights, and in competition with it a motion for transfer of guardianship to the maternal great grandmother. As a final comment, after finding that the great grandmother was a suitable and worthy guardian and that the child’s best interest would be served by being placed in her care, the court noted that the child had "three generations ... [of] ... extended family members" and a "significant biological connection" with them. This decision does not speak of any legislative intent or DCF policy favoring a relative, nor does it even mention pro-relative or other presumptions or their effect upon the burden of proof in a case such as this. It is specific to its own facts and its references to family shed no light upon the question now before this court.

Throughout the trial, R.C.s status as a relative was not denied. On the other hand, there was considerable discussion over whether she also deserved the benefit of the presumption as a person deserving of the label "licensed or approved by DCF to provide foster care pursuant to § 17a-114." The DCF social worker indicated that Paetyn had not previously been placed with R.C. because she was not thus licensed, due to some earlier negative involvement with the department. R.C. contested this now two-year-old decision. On October 4, while this decision was in its final draft, she filed a motion captioned "Intervening Maternal Great Aunt’s Motion to Open Evidence" and in the clerk’s office requested that this court schedule a hearing thereon. The motion focuses upon the social worker’s conclusion in September of 2016 and at all times since that she was "not licensable under the Department’s foster and adoption regulations." It proffers that intervenor has learned from a DCF source that she and her husband "are, in fact, licensable as foster parents," that they have "begun the licensing process," and that upon completion of certain preliminaries "their home will be licensed for placement." She maintains that their ability to be thus licensed was "not known at the time of trial" but yet that fact "directly contradicts the testimony of the Department social worker at the time of trial."

Setting aside any doubt over the optimism inherent in the assertions that "licensable" will inevitably lead to becoming "licensed," it is still the case that even if all the tenets of this motion were proven its premises at best merely reinforce her argument that a presumption exists favoring the granting of her motion, such that I must place upon DCF the burden of rebutting that presumption. Given the alleged confusion at trial as to the facts concerning R.C.’s license or ability to obtain a foster parent license, and notwithstanding that she has not been a "caretaker" for the child in over two years, I will in lieu of further delay allow her to reach the beachhead she struggles towards and will place upon DCF the burden of rebutting any presumption that R.C. is not a suitable and worthy guardian of Paetyn, or of proving that the child’s best interest is served by granting the petition for termination of parental rights. Doing so permits a present resolution of Paetyn’s case, and avoids continued litigation over a peripheral and irrelevant controversy as to R.C.’s past and present relationship with the department. Because I find that DCF has sustained that burden and that the motion for transfer of guardianship should be denied on its merits, I am accordingly ordering that this post-trial motion to open so as to bring forward the proffered evidence is moot and will schedule no hearing upon it.

B. Merits of the Guardianship Motion

R.C. is not a suitable and worthy guardian for this child because the extended history of her own household reveals considerable chaos and strife and because she does not comprehend the totality of Paetyn’s needs. R.C. is 37 years of age and is the sister of the maternal grandmother. She is the mother of four children who range in age from 17 down to 8. When she was around nineteen, she began a relationship with A.C. In 2001 their first daughter was born. Subsequently, they separated and began a dispute over custody of that child. In 2002, she took up residence with M.S., and had a child with him in 2003. After that relationship failed, she took up again with A.C. and they married in 2005; he later adopted the second child. In the years between her own emancipation and her marriage at age 24, R.C. lived in Connecticut, in Arizona, in Texas, in California, and then in several different towns in Connecticut.

Following the marriage, R.C. gave birth to her third child in 2006. Thereafter, the family moved to Arizona and remained there for a year. In 2008, they returned to this state and have apparently resided at different addresses, though now in Vernon at a home which they own. Their fourth child arrived in 2009.

In the March 2018, 40-day study of her suitability as a placement resource for Paetyn, it is reported that she is "a nurse" employed at a pediatrician’s office while continuing school to obtain her bachelor’s degree. At trial, R.C. described herself as a pediatric nurse³ now working on a bachelor’s degree in nursing.⁴ No evidence was offered as to how many hours or days she works each week.

3 When asked what her duties as a "pediatric nurse" entailed, she replied that she has a personal relationship with DCF Commissioner Joette Katz, as they serve on a committee together. No one redirected her testimony to answer the question with respect to any other elements of her job description.

4 From that testimony, this court inferred that she is now a registered nurse. Due to the ambiguity as to whether she is "a registered nurse," or in another status to which the term "nurse" might apply, such as a "licensed practical nurse," the court takes judicial notice that the Department of Public Health website lists her as the holder of a "licensed practical nurse" license, and has no record of her licensure as a "registered nurse." This distinction is not prejudicial to her; serving as a licensed practical nurse is a respectable vocation and reflects well on her. The only concern, as to which evidence might have been informative, is how much of a burden her future educational plans impose upon her and for how long. In light of other evidence that is dispositive, this concern now has little weight.

There are no substance abuse concerns on her part.

An unusual aspect of R.C.’s adulthood is that just a month after her marriage in 2005, as the mother of two toddlers, she enlisted in the army. She served in the reserves between 2005 and 2009, then in the National Guard from 2009 through apparently being honorably discharged in 2013. She did not serve overseas, but was deployed domestically on a number of occasions. These did not go well, and before her last anticipated deployment in 2012 she was experiencing so much anxiety over the prospect that she actively pursued what turned out to be a successful way of avoiding that mission. Her service, however, produced a diagnosis of ADHD and PTSD, the latter described as military related.

She also has a prior history of mental health issues, including a 2010 or 2011 diagnosis of bipolar disorder for which she was prescribed medications. In 2003, she spent ten days at a local psychiatric hospital as a result of a serious domestic violence incident during the time of her relationship with M.S. She reports that he was two-timing her as well as being financially unreliable, and that she fled to a shelter along with the first child. In the course of that crisis, however, M.S. sexually assaulted her. That moved her to want to kill him, which in turn led to the ten-day stay in the hospital.

The very disturbing domestic violence incident involving M.S. does not stand in isolation. Her family has experienced at least four documented spells of violence between her and A.C., in 2002, 2007, 2011, and 2014. In 2002, amidst investigative reports responding to a series of reciprocal but unsubstantiated reports each had made against the other of physical neglect of their infant child, the notes indicate that a restraining order was in effect- but not why. The second incident occurred in Arizona in 2007, and is also scantily documented. At the time, she had described what was a pitched battle between them over his hitting their firstborn, in the course of which he tried to choke her. The upshot was that they separated again for an uncertain duration in the midst of what she characterized as a "really rocky" time in their relationship. Testifying in these proceedings, she claims that he merely slapped her "reflexively" after he had been suddenly awakened.

In 2011, prompted by arguing over her responsibility to her military duties, the couple considered divorce. She reported that the arguing was constant and conducted in the presence of the four children, and that at times he would become angry to the point at which she could no longer take it. At times she has said he was physically violent, and at other times has limited her report to his being verbally abusive. A passage in the notes of the social worker who performed a contemporaneous investigation is chilling: "Mother reported the older children get involved every time Father is violent. K. has bitten him. J. has climbed on him and hit him. J. (a different J.) has yelled, ‘Stop! Don’t touch Mommy! Don’t hurt Mommy!’ " These details suggest that there was indeed physical violence not merely witnessed by but involving the children, that it occurred with some frequency, and that it was traumatic for the entire family. In the fall of that year, R.C. separated from A.C. for the third time and moved with the children to a domestic violence shelter. She reconciled with him after about two months, despite telling a professional working as a counselor to her under DCF auspices that she would never move back in with him.

In 2014, A.C. slapped the second child across the face while angry at her. She was then ten years old. R.C. once again indicated that she planned to separate from A.C., but there is no indication that she did so. As to this incident, A.C. admits doing what he is accused of. He denies any culpability for any of the earlier events. Instead, he says, R.C. made her several complaints when she was "young and dumb" and that they lack a factual basis.

She apparently concurs with this assertion, for she now insists that the couple just used DCF to get back at each other, but without any real violence having occurred between them or towards any child. She calls the department’s present concerns about her or A.C. a waste of state resources, but admits that her record looks "horrendous" and that all she had reported on prior occasions was "true to a certain extent."

More probative than today’s recantations is the plan each laid out for Paetyn’s future in their care. They would be caretakers only, and for a long though indefinite term, until C.K. renders herself able to once again reunify with her daughter. Both testified as to the tests they would insist she pass before that reunification, and her performance would have to include success at remaining substance free (for two to four years), success at visiting with her daughter under their supervision, success at maintaining a stable home, and success, in the end, at convincing them that she can be trusted at last with this child. R.C. figures this will be accomplished when mother is around 25, and her frontal lobe fully developed. (At that time, notably, Paetyn will be about seven years old.)

I have no doubt that R.C. and A.C. love their niece and wish the best for her. R.C. has made it to several visits with the child over the past nine months, and she has made the child comfortable and happy to play with her and with her own children who are cousins. I have no doubt that in spite of their marital problems they love each other and their children and are hardworking people who have overcome a lot of adversity in their own lives. But their plan is essentially to set the clock back to 2016 and restart the reunification process, this time under their oversight, which they believe has superior odds of success to that which DCF has managed to provide in the past two years. It is telling that C.K. did not suggest R.C. as a relative resource between the time of the OTC and the beginning of this calendar year because she was hopeful of herself being reunified with the child, while she now supports their plan because by keeping Paetyn in the family she expects to someday get her child back into her own care. It is also telling that both R.C. and A.C. are shouldering a discernible chip at DCF stemming from their perceptions of earlier unfair treatment at the hands of the department.

Under all these circumstances, I do not find that R.C. is a suitable and worthy guardian for this child at this time.⁵ Her focus is not on the child’s long-term best interest, but on experimenting with her own reunification protocol when that which has been underway for the past two years has not taken hold.

5 I intend by this conclusion no assessment of her capacity as a guardian for her own four children, who do not share Paetyn’s needs. They seem to be doing well notwithstanding the problems described above.

But the family does not always know best. Paetyn’s needs are not limited to the material needs common to all youngsters. For there to be any chance of her succeeding at life, she needs permanence and stability. R.C.’s plan promises her neither, and would put her at high risk of being back in this court at some future date when its shortcomings have become obvious. This court concludes that Paetyn’s best interest lies contrary to awarding guardianship to R.C. This conclusion reflects the frailty of the movant’s plan as well as the strength of the current bond between Paetyn and W.A. "[A] trial court may rely on the relationship between a child and the child’s foster parents to determine whether a different placement would be in the child’s best interest." In re Athena C., 181 Conn.App. 803, 821 (2018). No witness spoke ill of the care that this foster parent has provided this child, giving her a haven in the storm for over two years. There is no reason to doubt that she will continue to do so. W.A. is now the only person functioning as this child’s parent and there is an undeniable parent-child bond between them which lacks only legal acknowledgement. Even in the face of any hypothetical presumption that this child’s best interest might favor R.C. because she is a family member or holder of a DCF foster parent license, that presumption is clearly rebutted by the child’s right to remain where she is already wanted and loved, as opposed to wresting her from that haven to participate in an experiment aimed at achieving a result that is highly likely to prove futile.

VI. Conclusion and Orders

This court finds by clear and convincing evidence that the best interests of Paetyn R. would be served by the termination of the parental rights of C.K. and of John Doe. This court further finds that it is not in the best interest of the child that her guardianship be transferred to the maternal great aunt. This child needs a secure and permanent environment, and is now in a healthy setting with a preadoptive foster mother. Considering the relationship that the child now has with that family, considering her age, sense of time, and the totality of his circumstances, It is accordingly

ORDERED, That the motion for transfer of guardianship and the subsequent motion to open and allow new evidence, are denied;

That the motion for approval of the permanency plan of termination of parental rights and adoption ought to be granted in light of the ruling on the termination petition to that effect, and, for reasons set forth above, it should be found that the Department has made reasonable efforts to achieve that plan; and

That the petition asking that the parental rights of C.K. and John Doe be terminated ought to be granted, and those parental rights are therefore terminated. The Commissioner of the Department of Children and Families is hereby appointed statutory parent of this child for the purpose of securing a permanent placement and the child’s adoption. The Commissioner shall file with this court a written status of the efforts to effect such permanent placement and file such further reports as required by state and federal laws.

Judgment may enter accordingly. ^[*] In accordance with the Connecticut General Statutes Section 46b-124, and the Connecticut Practice Book Section 32a-7, the names of the parties in this case are not to be disclosed and the records and papers of this case shall be open only for inspection to persons having a proper interest therein and only upon order of the Superior Court.