Opinion
H14CP15011550A H14CP16011886A
08-13-2018
IN RE SCARLETT S.[1] In re Blair Elizabeth S.
UNPUBLISHED OPINION
OPINION
STEPHEN F. FRAZZINI, JUDGE TRIAL REFEREE
These matters are before the court on petitions brought by the Commissioner of Children and Families (commissioner) under General Statutes § 17a-112 to terminate the parental rights (TPR) of Ashley Blair S. (who will be referred to in this decision as Ms. S. or mother) and Joel M. (who will be referred to as Mr. M. or father) to the two minor children named above. As statutory grounds for terminating the respondents’ parental rights, the petitions originally alleged that each parent has failed to rehabilitate, after the children had been found neglected, such that neither one could assume a responsible position in the lives of the two children in a reasonable period of time. The petitions also alleged that the father abandoned the children and had no ongoing parent-child relationship with either of them. Both parents were properly served with the petitions, appeared on the initial hearing dates, and denied the allegations of the petitions. For the reasons stated below, the petitions are granted, and the commissioner is appointed to serve as the statutory parent of both children.
These cases were tried to the court for seven days, beginning on November 23, 2017, and ending with closing arguments on June 1, 2018, after which the parties submitted legal authorities on adverse inferences. The mother appeared with her attorney for trial, and before evidence began she was advised in accordance with In re Yasiel R., 317 Conn. 773, 794, 120 A.3d 1188 (2015). Although the respondent father’s attorney was present, Mr. M. himself failed to attend the first day of trial; on request of the petitioner, he was then defaulted and trial began in his absence. On the second day of trial, however, the father appeared with his attorney; by agreement with the petitioner, the default against him was then vacated and he submitted a written consent to termination of his parental rights, which the court accepted after canvassing him. The petition was then amended to allege consent as the sole grounds for terminating his parental rights to the two children. The father and his attorney did not appear for any other days of the trial. Before trial began, the court notified the parties that it would take judicial notice of the contents of the court files, including prior court proceedings, memoranda of hearings and court orders, involving these two children. On June 7, 2018, hearing on the commissioner’s motion for review of a permanency plan (MRP) regarding Blair was consolidated with the pending proceedings.
Practice Book § 35a-8, provides, in pertinent part, as follows: "(a) ... All parties except the child or youth shall be present at trial unless excused for good cause shown. Failure of any party to appear in person or by their statutorily permitted designee may result in a default or nonsuit for failure to appear for trial, as the case may be, and evidence may be introduced and judgment rendered."
The petitioner introduced 21 exhibits and called six witnesses. The attorney for the respondent mother called four witnesses, including the respondent herself, and introduced four exhibits. The attorney for the children called no witnesses and offered only one exhibit. The court heard testimony from the following witnesses:
David Salce, a social worker employed by the Department of Children and Families (DCF or department) who was assigned to a child protection investigation on September 18, 2015, after the department had received a report the day before that the respondent mother and her newborn child had tested positive for opiates at birth two days earlier;
Denzel Brady, who was the first DCF social worker assigned to this case after the initial investigation was completed;
Kathleen Costello, the current DCF social worker;
Dr. Madeline Leveille, Ph.D., a licensed clinical psychologist who conducted a court-ordered psychological evaluation of the respondents and their interactions with the older child and who was qualified without objection to testify as an expert on forensic psychology in child protection matters;
Dr. Sohrab Zahedi, M.D., a psychiatrist who met with the mother three times after Dr. Leveille recommended that the mother be referred to a psychiatrist specializing in addiction medication;
Pamela Rosa, a licensed professional counselor employed at Community Mental Health Affiliates (CMHA), who conducted an intake assessment of the mother in September 2017 when the mother went to CMHA for medication management, and testified about the treatment and services Ms. S. received there;
Diane Gediman, a case manager for the Supportive Housing Program at Wheeler Clinic and who has been working with the mother since March 2017;
Robert S., the maternal grandfather; and
Ashley Blair S., the respondent mother.
In addition, numerous exhibits were introduced into evidence: the TPR social studies for Scarlett dated March 29, 2017, and for Blair dated July 25, 2017; an addendum to those social studies dated December 22, 2017; the MRP permanency plan regarding Blair dated March 19, 2018; the DCF Investigation Protocol describing the department’s investigation, findings and conclusions upon being notified about the positive toxicology tests of mother and child after Scarlett’s birth; the specific steps ordered for and provided to the respondents on various occasions; the mother’s treatment records at CMHA; emails between social worker Costello and Dr. Zahedi; emails and letters between Costello and the mother’s therapist, Kelly Fortin; text messages between Costello and the current foster mother; Dr. Leveille’s written report on the court-ordered psychological evaluation; a report on a psychiatric evaluation of the mother conducted at the Wheeler Clinic on January 29, 2016, by an advanced practice registered nurse (APRN), Kathy Kirwin; "RSVP- Recovery Specialist Monthly Progress Reports" for the mother between October 9, 2015, and February 8, 2018; a "Patient Report" for the mother from the Connecticut Prescription Monitoring Reporting Service for the period December 19, 2015 and December 19, 2016; copies of the "Client Referral" forms submitted by DCF to Advanced Behavioral Health, Inc., on September 13, 2016; November 10, 2016; May 18, 2017; September 22, 2017; November 30, 2017; and February 23, 2018, for the mother to have random drug screens and a hair follicle drug test; progress notes from Dr. Gary Miller, M.D., regarding an office visit by the mother on September 9, 2013; a record of the mother’s appointment at the Briar Rose Network on July 27, 2016, at which a urine test was positive for pregnancy, and a subsequent report from the Bristol Radiology Center dated August 5, 2016, stating that an ultrasound had confirmed the pregnancy at 25 weeks gestation; a certified copy from the state police of the father’s criminal conviction history; and a police report on the father’s arrest on September 30, 2017.
Under the standing orders of the Superior Court for Juvenile Matters regarding the Recovery Specialist Voluntary Program (RSVP) issued by the chief administrative judge for juvenile matters, evidence regarding a party’s participation in the RSVP program may not be used in juvenile proceedings except in certain limited circumstance, one of which is if "ordered by the Court." In the present matter, the court granted the respondent mother’s request to permit such evidence.
The court is not aware of proceedings pending in any other court regarding custody of the children and has jurisdiction. The mother advised the department that she has native American heritage, based on an affiliation with the Blackfoot Indian Tribe, but the department reported that this tribe notified it that neither mother nor children were tribal members. As the father did not claim such heritage, the requirements of the Indian Child Welfare Act are not pertinent to these proceedings. The court has carefully considered the petition, the evidence presented, and the information or materials judicially noticed according to the standards required by law. The matter is now ready for decision.
I
PRELIMINARY FINDINGS OF FACT
During the course of the child protection proceedings, Ms. S. has spoken to a number of people about her life and the events leading up to the removal of her children, and her descriptions of that past are contained in several exhibits, including the Investigation Protocol prepared by department social workers after Scarlett’s birth, Dr. Leveille’s report, and various treatment records. Her accounts of her life are not always consistent, however, and sometimes she denies a fact that certain exhibits report she had told to someone. For example, she has said on several occasions that she began drinking heavily at an early age, but claimed to Dr. Leveille that "her use of alcohol and other substances when she was in high school [was] ... typical of high school students in general." Petitioner’s exhibit 10, Court-Ordered Child Protection Evaluation, dated July 15, 2016, pp. 22-23. Nonetheless, and despite these inconsistencies, the evidence shows that this 27-year-old mother has had a difficult life. She was raped at the age of eleven during a sleep-over at a friend’s house. She did not tell her parents about the assault or participate then in any treatment or services to address the stress and trauma she endured as a result of that experience. Her statement to Dr. Leveille that she became self-sufficient at age nine and received much of her parenting from an older brother suggests that she received little parental support or nurture from an early age. She moved out of her mother’s home at the age of 16 to live on her own and support herself.
The evidence also shows alcohol and drug abuse on her part during her teen years, including the use of marijuana and cocaine, until being diagnosed with cervical cancer at the age of 18. (She has repeatedly claimed that she stopped using alcohol after this diagnosis.) Over the next two years, she underwent surgeries to remove her wisdom teeth and for ovarian cysts. (She told the Wheeler Clinic APRN conducting the psychiatric evaluation in January 2016 that she had more than ten such surgeries in a four-year period between the ages of 19 and 23 years old.) Sometime after the cancer diagnosis, Ms. S. began using opiates, at first, apparently, Vicodin that was prescribed for pain but then Vicodin that she bought illegally. A doctor later prescribed Tramadol for her instead of the Vicodin. The evidence also shows that during her teen years or early twenties she was prescribed Adderall and Xanax and periodically used heroin. After becoming pregnant with Scarlett, she followed her obstetrician’s recommendation to stop using Tramadol and Xanax while pregnant, but she then returned to using Vicodin until just before the baby was born.
She told the nurse practitioner who conducted the psychiatric evaluation at Wheeler Clinic in January 2016 that she had started the Adderall and Xanax at age 19 "for difficulty with focusing, anxiety, irritability, difficulty expressing self without seeming ‘intense.’ " Petitioner’s exhibit 12, p. 1.
When Scarlett, the older of these two children, was born on September 16, 2015, both mother and child tested positive for the presence of opiates as a result of Ms. S.’s use of opiates during the pregnancy. She admitted to a nurse at the hospital that she had been "using a couple of bags" of heroin a day before learning she was pregnant. Petitioner’s exhibit 1, Investigation Protocol, p. 4. The baby’s meconium was later also found to contain morphine, which the DCF Investigation Protocol reported could have been caused by the mother’s use of heroin during the pregnancy. In the hospital after Scarlett’s birth, Ms. S also told a hospital employee that she had been "taking Vicodin with an old prescription ..." Mother reported that she has been taking 4 tablets of Vicodin per day "for pain in mouth and back ... but she decreased to one tablet per day once she found out she was pregnant." Id. The hospital reported the positive opiate tests of the mother and child to DCF and that the baby would need to remain in the hospital during withdrawal. Two days after the child’s birth, DCF social worker investigator David Salce went to the hospital. The hospital social worker told him that the baby was being administered a small amount of morphine, was experiencing withdrawal symptoms, including stiffness, sneezing, and tremors, and would be in the hospital for at least five days. The social worker informed Salce that the baby would have to be observed in the hospital for two days after being weaned off the morphine.
The investigator also spoke to Ms. S. at the hospital, and she admitted that she had been taking Vicodin during the pregnancy and had known that it was unhealthy for the unborn child to do so while pregnant "but she did not know how unhealthy it was ..." She told Salce that "she wants help and ... was willing to comply with treatment." Petitioner’s exhibit 1, p. 5. In another interview a week later, she repeated her willingness "to comply with any treatment recommendations or further recommendations of DCF" and said that she "understands that she needs help and support to obtain and maintain sobriety." Id., 6-7. She told Salce that she had just seen her primary care physician, Dr. Gary Miller, who had prescribed Xanax and Adderall for anxiety and ADHD and "Tramadol to address her opiate dependence." Id., 6.
At the hospital, Ms. S. told social work investigator Salce that she had originally been prescribed Vicodin for the pain after surgeries and treatment for cancer. When her prescription for Vicodin expired, she used Vicodin that she bought "off the street because she thought her pain was not healed." She said she was "using daily; 3-6 pills of 5 mg" but eventually "realized that she had a problem" and saw a doctor who prescribed her with Tramadol, "which helped her withdrawal symptoms." She told Salce that she was "clean of the pain pills for about one year," but then "began using again recreationally with a friend," at first only "occasionally but her habit persisted to almost daily use ... consistently for a couple of years." She claimed that "she tried to quit ‘cold turkey’ when she learned she was pregnant in April, but had "felt like ‘shit’ due to the withdrawals." Id. She said she had then begun using 1 to 1 1/2 pills of Vicodin daily throughout the rest of her pregnancy. She said "her last use of pills" had been two days before the child was born. Petitioner’s exhibit 1, p. 5.
At the hospital, Ms. S. told Salce that she lived with her mother and brother, and Salce then spoke with the maternal grandmother. When informed by Salce that the department needed to make sure that the baby would always have a safe and attentive caretaker, the maternal grandmother told him that the maternal uncle and she could stagger their work schedules so that one of them would always be home. After a meeting with the family a week later, however, DCF became concerned that the family "appeared to be more protective of Mother than wanting to admit there is a problem ... [and] did not know what to do to keep their grandchild safe." Id., 9. Since the child’s father was incarcerated and not available to care for the baby, DCF decided to seek an order of temporary custody (OTC).
On September 29, 2015, the department filed a neglect petition alleging that the child was neglected by being permitted to live under conditions injurious to her well-being and by being denied proper care and attention. The department also sought an OTC that was granted ex parte by the court, Abery-Wetstone, J., who also signed orders of the specific steps that each parent should take to regain custody. Both parents appeared for the initial hearing on the OTC, were appointed counsel, advised of their rights, entered denials to the allegations of neglect, and agreed to sustaining of the OTC. Each one was also provided with amended preliminary specific steps ordered by the court, the mother signing her copy on October 9, 2015. On December 15, 2015, the respondent mother entered a plea of nolo contendere to the allegation of the child being denied proper care and attention, the respondent father was allowed to stand silent as he had been incarcerated and was a non-custodial parent at the time of the neglect, and the child was adjudicated neglected on that basis and committed to the department. Final specific steps were ordered and provided to both parents.
After Scarlett’s birth, DCF referred Ms. S. to Wheeler Clinic for a drug screen and substance abuse evaluation, which took place on September 23 and 24, 2015. The drug screen was positive only for the benzodiazepine contained in the mother’s prescription Xanax, and the evaluation recommended that she participate in substance abuse intervention and Women in Healing groups. She began the substance abuse intervention group on September 29, 2015, and several drug screens over the next month were positive for benzodiazepine and amphetamines present in her prescriptions for Xanax and Adderall. In late October, however, a toxicology screen was also positive for opiates and Suboxone, the latter of the "street" variety. Perhaps, as Ms. S. claimed to Dr. Leveille, the Tramadol she was taking accounted for the positive opiate test, and nothing in the evidence refutes that possibility; but Ms. S. denied using any Suboxone. Her treatment was then transferred to an intensive outpatient program (IOP). The TPR social study submitted in the proceeding regarding Scarlett reports that she "did very well" in this group, attending consistently and completing it in January, when she was then recommended to participate in a relapse prevention group, from which she was successfully discharged in April 2016. Petitioner’s exhibit 2, Social Study in Support of Termination of Parental Rights Petition, dated March 29, 2017, p. 12.
Throughout the time she was in treatment at Wheeler Clinic, the mother continued to use the prescriptions she had obtained from her primary care physician, Dr. Gary Miller, for Adderall, Tramadol, and Xanax. Erin Latham, the clinical supervisor of the mother’s treatment at Wheeler Clinic told Dr. Leveille that being "discharged successfully" "did not mean that the mother had achieved sobriety" and that the supervisor "doubted Ashleys’ commitment to attaining sobriety." Petitioner’s exhibit 10, pp. 22-23. Ms. S. also completed a substance abuse evaluation at Wheeler Clinic on July 21, 2016, that resulted in no treatment recommendations. A urine test that day was "negative except for prescribed medications." RSVP monthly report for July 24 to August 23, 2016, contained in petitioner’s exhibit 19.
After the OTC for Scarlett, the mother also began participating in the RSVP program. She met periodically with the RSVP specialist and submitted to random tox screens and breathalyzers until being discharged unsuccessfully in February 2018. One portion of each monthly RSVP report is captioned "Recovery Program Compliance," and Ms. S. is recorded as noncompliant on all of the monthly reports for the periods she participated in the program- 19 times because she had not submitted "proof of attendance for six (6) support group meetings as required by RSVP" and 17 times because she had missed at least one random drug screen during the particular month. See Petitioner’s exhibit 19, containing the RSVP- Recovery Specialist Monthly Progress Reports.
In December 2015 or January 2016, the mother also began individual weekly psychotherapy with Kelly Fortin, a licensed professional counselor and supervising psychotherapist at Hop Brook Counseling Center. Fortin did not testify at trial, but exhibits were introduced regarding the treatment she has been providing, including copies of four letters sent to social worker Costello, various emails exchanged with Costello, and comments made by Fortin that were documented in the TPR and MRP social studies and Dr. Leveille’s written report. According to those documents, Ms. S. has regularly attended weekly therapy except for an unspecified period of time beginning in approximately August 2016 when the therapy sessions occurred twice weekly; and the court finds no reason not to find these reports about her attendance to be true.
Fortin initially diagnosed Ms. S. as having, and began treating her for, adjustment disorder with anxiety and depressed mood. See Mother’s exhibit A, letter of Kelly Fortin dated March 7, 2017. (In July 2016, Fortin told Dr. Leveille that she diagnosed the mother with Generalized Anxiety disorder, and the evidence does not clarify whether this diagnosis is different from what she said in the March 2017 letter.) According to the March 2017 letter, Fortin had recently added a diagnosis of posttraumatic stress disorder. The goal of treatment was to reduce overall symptoms of anxiety, which Fortin told social worker Costello in February 2017 would also address mood regulation. See emails from Kelly Fortin to Kathleen Costello dated November 28, 2016, and February 21, 2017, contained in petitioner’s exhibit 8.
Fortin’s email on November 28, 2016, stated that one of the mother’s goals was "[r]educing overall symptoms of anxiety by: A) increasing coping skills ... B) Increasing her natural resources ... C) Learning to make healthy and appropriate choices to assist with ability to adjust ... D) ... working on increasing appropriate emotional identification, expression and processing ..."
Fortin’s email on February 21, 2017 stated that "We do work on mood which can be seen in the goals and steps below: ...
In January 2016, DCF referred Ms. S. to Wheeler Clinic for a psychiatric evaluation of her medication usage, at which she stated that "I’m here because DCF wants me to change medications even though I’m doing fine on the meds my PCP prescribes for me." Petitioner’s exhibit 12, Report of Psychiatric Evaluation, dated January 29, 2016, p. 1. The APRN’s assessment after the evaluation was that Ms. S. had "anxiety and opioid dependence/abuse stemming from past traumas and extensive cancer treatment throughout late adolescence. More information is needed to determine diagnosis and whether a stimulant or benzo is indicated for client’s sx. Client is open to tapering off xanax, so will plan to pursue during follow up. If anxiety sx persist, consider SSRI. No medications prescribed at this time." Id., 2. The APPN planned to contact Ms. S.’s primary care provider "for collateral info, psych and med hx [history]" and "follow up in 2 weeks." Id. The mother did not attend a follow-up appointment with the APRN, however.
In March 2016, Dr. Miller told a department representative that the mother had not told him about her drug use while pregnant. He also told DCF that he would begin reducing the amounts of Xanax he prescribed to her. A month later, he told DCF that "the taper process had started and Ms. [S.] could take up to two Xanax pills per day rather than three." A copy of the state’s Prescription Monitoring Report for the mother for the period December 19, 2015, through December 19, 2016, confirmed that Dr. Miller reduced the quantity of this medication being prescribed as of April 27, 2016, but there were no further reductions in the reported prescription amounts through the end date of that report.
After the mother completed substance abuse treatment at Wheeler Clinic in 2016 but continued to use the addictive prescription medications that the department believed were a child protection concern, the petitioner moved in May 2016 for a court-ordered psychological evaluation, to which all parties agreed, and that motion was granted on May 18, 2016. Dr. Leveille met for that purpose with Ms. S. on June 27 and Mr. M. the next day, when she also conducted two hour-long parent-child observations of each parent with Scarlett. Dr. Leveille’s report on that evaluation was introduced into evidence, and she also testified. Her testimony, conclusions, and findings are all found to be credible, persuasive, and reliable. She concluded that both respondents have "serious psychological issues that negatively affect their personal functioning and their capacities to parent a child on a long-term basis." Petitioner’s exhibit 10, p. 35. For Ms. S., those issues include anxiety, a mood disorder, "personality traits that interfere with her functioning [that] include narcissism, histrionic behavior and paranoia, and substance abuse. Dr. Leveille testified that the mother’s mental health issues gave her "great concern" about Ms. S.’s "capacity to have enough insight to protect her children." Transcript of testimony, p. 29. She also concluded that those mental health issues could not be adequately addressed until her opiate addiction had been. Id., 28.
Dr. Leveille’s report states as follows: "Her narcissism manifests itself in grandiosity in the form of self-centeredness and presenting herself in an excessive and unrealistic positive light, even at the expense of others. Her histrionic behaviors take the form of attention seeking and dramatic self-presentation and expressions, and her paranoid traits manifest themselves through her stubbornness, distrust of others, hypervigilance and pathological insistence on performing tasks her own way. Her defensiveness and denial of common human shortcomings are related to her narcissism and her distrust of others." Petitioner’s exhibit 10, p. 35.
On redirect examination, Dr. Leveille testified as follows:
Dr. Leveille also testified on redirect examination as follows:
Dr. Leveille also reported that Ms. S. became addicted to opiates to manage acute pain and emotional stresses associated with cancer and medical issues in her early twenties, and that she has continued since then to abuse opiates to cope with anxiety and depression: "Ashley’s continued denial that she is depressed or has anxiety contributes to avoiding appropriate treatment for her emotional states ... For many years, Ashley has been self-medicating her anxiety and depression with opiates rather than seeking the appropriate treatment for her disturbed emotional states." Id., 37. Dr. Leveille concluded that Ms. S.
Dr. Leveille’s report noted that the mother "underwent many surgeries related to her cancer, recurrent ovarian cysts, painful wisdom teeth, and chronic tonsillitis during her early adulthood. Ashley was prescribed opiates medications for the pain associated with these conditions as well as the pain from two motor vehicle accidents. Prior to her cancer diagnosis, Ashley was intense and anxious, and following the diagnosis, she became depressed and even more anxious. She saw her life as foreshortened, and she did not care about life. The stressors associated with her very real medical conditions for a young woman who was already psychologically unstable led to the overuse and misuse of opiates to suppress her emotions as well as her physical pain." Petitioner’s exhibit 10, p. 18.
has a moderate Opioid Use Disorder. I also believe that Ashley has a Benzodiazepine Use Disorder. Ashley’s drugs of choice are prescription pills, particularly opiates and benzodiazepines. Ashley’s use of opiates and benzodiazepines at this time is controlled use in the sense that she limits her use to the number of pills that are prescribed to her within the month. However, her use of her prescriptions is abusive in the sense that she often does not use her medications as prescribed, rather she uses them whenever she wants within the month. Ashley’s long history of using prescription medications and her current attitudes and behaviors are consistent with an ongoing substance use disorder. Ashley wants everyone associated with the current child protection case to believe that her abuse of opiates was not particularly problematic, and her abuse of opiates is in her past. Ashley insists that she is not addicted to prescription pills, and she has not abused opiates since the birth of her daughter. She points to the facts that she does not request that her opiate prescription be refilled early, and her urine screens this year have been negative for illicit substances as proof that she is not physically or psychologically dependent on opiates or other pills. Her reasoning here is superficially unconvincing and frankly must be regarded as the sophistic rationalizations of a severe prescription drug addict.
Petitioner’s exhibit 10, p. 36.
Dr. Leveille testified that Ms. S. needs "psychotherapy to address her longstanding issues of mood instability and some maladaptive personality characteristics which include histrionic tendencies, narcissistic tendencies and paranoid tendencies and also treatment to deal with her very serious opioid prescription drug abuse." Transcript of Dr. Leveille’s testimony on November 13, 2017, p. 3. When asked to describe why she had so characterized the mother’s substance abuse, Dr. Leveille explained as follows:
Ms. [S.] was in treatment at the time that I saw her for opioid use disorder with Ms. Kelly Fortin. She had been through various kinds of drug treatment programs. In addition to that, she was continuing to use her prescription opiate and benzodiazepines in a non-prescribed way. She was- she had used Vicodin during- when she was pregnant. Even though she had been told by her doctors to stop her Tramadol, she didn’t ask them about Vicodin, which is an even more serious opiate than Tramadol. She made many rationalizations about her drug use, yet she persisted- she recognized that it wasn’t a wise choice, that it was selfish, but she did not express the level of concern for the possible effects of the opioid use on her young daughter.Id., 4. In Dr. Leveille’s opinion, Ms. S. also "minimized the consequences of her drug use on Scarlett" by saying that the child’s "only withdrawal symptom was sneezing" and that "Scarlett did not have a problem going through withdrawal," thereby ignoring the fact that the child "had to undergo a medically managed detoxification from opiates." Petitioner’s exhibit 10, p. 9. Dr. Leveille concluded that "Ashley drastically minimized the moral, medical and behavioral significance of the fact that her daughter was born opioid dependent and required a medical withdrawal regimen during the first week of her life." Id.
Although Ms. S. had attended several substance abuse treatment programs and participated in regular counseling since January 2016 with Kelly Fortin, Dr. Leveille concluded that "she has not received the necessary services to address her abuse of opiates and benzodiazepines, and ... she has not received the necessary psychiatric services to medically address her difficulties with mood and affect regulation," Id., 38. She also two made specific recommendations for treatment. First, she said that the mother’s "maladaptive personality patterns would make it more difficult to come to terms with recognition and treatment of an opioid use disorder and would require a psychotherapist who is a seasoned clinician who has particular skill, experience and training in working with individuals who are dually diagnosed." Transcript, p. 6. Second, she recommended that Ms. S.’s medication usage be evaluated by a "psychiatrist who specializes in addiction medicine" "to assess Ashley’s level of pain and the appropriate ways to manage that pain, clarify her psychiatric diagnoses, review her medications, make changes to her medication regimen, as necessary, and help her to develop strategies other than opiates to manage her pain." Petitioner’s exhibit 10, p. 38. When asked at trial why she was recommending a psychiatrist specializing in addiction medicine, Dr. Leveille explained that "in addition to the personality and mood instability, she has and it is a primary psychiatric condition, is the opioid use disorder and a psychiatrist would have to have a special skill in being able to figure out what is an appropriate level of treatment for addressing the opioid use disorder." Transcript, p. 6. She then recommended ongoing coordination and consultation between that psychiatrist, Ms. S.’s therapist, and her primary care doctor- the one who had prescribed her various medications.
Dr. Leveille never specifically addressed whether the mother’s current therapist has the necessary qualifications and skill to address the mother’s mental health issues, but her report appears to assume that Fortin would continue to be the mother’s therapist. Dr. Leveille did state, however, that the mother "needs treatment for the opioid use disorder coordinated with treatment for the mood instability and maladaptive personality pattern and to deal with one of these aspects and not the other is- would be willfully inadequate." Transcript, p. 17. She also stated that it was important that her therapy address both the mother’s mood instability and her "maladaptive behavior patterns." Id., 22. The court authorized a copy of the psychological evaluation to be provided to the mother’s therapist. When social worker Costello later asked Fortin how her treatment with the mother was addressing the recommendations in the psychological evaluation, Fortin responded that she does not "do treatment based off someone else’s evaluation," that she had not diagnosed Ms. S. with having a personality disorder, but that she was attempting to address mood regulation. (See portions of Fortin’s February 21, 2017, email to Costello contained in footnote 7, supra on page 12.)
For example, Dr. Leveille’s report states that "[t]here should be ongoing consultations among the psychiatrist, Ashley’s current psychotherapist and her primary care physician in order to provide a coherent treatment plan for her." Petitioner’s exhibit 10, p. 38. That same report, however, also assumes that the mother’s therapy would "address her problems with mood and affect regulation and her infelicitous personality traits." Id.
On July 27, 2016, Ms. S. went to a doctor’s office and reported that she thought she "may be pregnant." Petitioner’s exhibit 16, Briar Rose Network records, page 1 and 2. A urine pregnancy test administered there was positive, but the APRN also ordered an ultrasound, which was conducted on Ms. S. the next week and confirmed that she was pregnant and that the fetus was "at 25 weeks gestational age." Id., p. 3. Ms. S. waited almost two months to tell DCF about the pregnancy, and when DCF social workers met with her on September 30, 2016, she claimed to them that her obstetrician had approved her continued use of her prescriptions for Adderall, Xanax, and Tramadol during the pregnancy.
Blair was born on October 7, 2016, approximately six weeks premature. The mother tested positive for benzodiazepine at the time of birth, and she admitted to hospital staff that she had been taking Adderall, Tramadol, and Xanax during the pregnancy, had not informed her primary care doctor who had prescribed these medications that she was pregnant, and had not had any prenatal care. (Thus, she could not have obtained permission from an obstetrician, as she had claimed to DCF, to keep taking those medications.) Although Ms. S. testified at trial that "once I found out I was pregnant, ... I stopped taking the Xanax"; FTR, May 4, 2018, 3:09:40 p.m. - 3:09:48 p.m.; that testimony is not credible in light her admission at the hospital to continued use of Xanax during her pregnancy, testing positive for benzodiazepine at the hospital, and the baby’s withdrawal symptoms requiring hospitalization for 12 days after birth. (A few months after birth, Blair was also diagnosed as having a "cleft lip," which Dr. Zahedi identified at trial as a possible side-effect of using Xanax during pregnancy.)
"For The Record" (FTR), is a software used by the court monitor that digitally records court proceedings and notes the hour, minute and second of each recorded statement.
On October 17, 2016, the department filed a neglect petition alleging (on a predictive basis) that Blair was being denied proper care and attention and living under conditions injurious to her well-being. The department also sought and obtained an OTC, the accompanying affidavit averring that "DCF cannot ensure the safety of the new baby as mother has an extensive history of abusing pain medication" and that putative father Joel M. "has not shown an interest in Blair and not offered any viable options for her." OTC affidavit of Kathleen Costello, dated October 17, 2016. Ms. S. appeared at the preliminary hearing on the OTC four days later and agreed for it be sustained. No service was shown on Mr. M., and the court ordered notice on him by publication. The OTC was sustained that day, without prejudice to Mr. M, and amended preliminary specific steps were that day ordered by this judge and signed by the mother. The father was later defaulted after not appearing on the initial hearing on the neglect petition on November 23, 2016, after notice by publication was confirmed. On April 13, 2017, Ms. S. entered written pleas of nolo contendere on both counts of the petition, and Blair was then adjudicated neglected and committed to DCF. Final specific steps were that day ordered by Judge Abery-Wetstone and provided to Ms. S.
Both Scarlett and Blair were thus removed from their mother’s legal care and custody, adjudicated to be neglected, and committed to the Commissioner because of the mother’s abuse of prescription medications and illegal drugs. From the time of Scarlett’s removal and for the next two years, DCF representatives repeatedly told Ms. S. that the department believed she was addicted to her prescribed medications and that "she would need to come off of all of her prescribed medications in order to be reunified with her children." Testimony of Denzel Brady, FTR, November 13, 2017, 4:20:00 - 4:20:10 p.m. The specific steps ordered by the court in connection with the OTCs and commitments of the two children contained specific goals related to addressing her substance abuse. Since the OTC on Scarlett, Ms. S. has engaged in substance abuse treatment in three different contexts: at Wheeler Clinic from late September 2015 through April 2016; in the RSVP program from October 2015 through February 2018; and at CMHA from September 2017, through January 2018. As discussed throughout this decision, however, the evidence shows that her participation in those programs did not successfully address her substance abuse and underlying mental health issues.
After receiving Dr. Leveille’s report, DCF referred Ms. S. to Dr. Sohrab Zahedi in August 2016 for the psychiatric medication evaluation recommended by Dr. Leveille. Ms. S. met with him three times between October and December of 2016. At that time she was still taking the Adderall, Xanax, and Tramadol that had been prescribed by Dr. Miller, but his office agreed in January 2017 that Dr. Zahedi could take over her medication management. Dr. Zahedi testified at trial, and the court found his testimony to be credible and persuasive. He acknowledged at trial that the substances that had been prescribed by Dr. Miller are highly effective agents for treating anxiety, ADHD, and physical pain, but he concluded that Ms. S. was "abusing her prescribed substances rather than just using them." FTR, November 13, 2017, 11:19:37 a.m. - 11:20:03 a.m.
Dr. Zahedi suggested to Ms. S. that she try other, less addictive medications that could potentially offer her relief for her symptoms. He prescribed two such medications, which he testified were then filled by a pharmacy, but the mother also continued to refill her prescriptions for Adderall, Xanax, and Tramadol. He testified that Ms. S. "objected throughout" his three sessions to changing her medications, probably because "Ashley doesn’t see the utility of my services as she doesn’t believe she is currently abusing or dependent on any agents." Petitioner’s exhibit 8, email from Dr. Zahedi dated December 19, 2016, to mother’s therapist and DCF social worker. At trial Ms. S. claimed that she tried the medications Dr. Zahedi prescribed for approximately a month, but that they left her feeling extremely lethargic and depressed.
In mid-January 2017, Ms. S. told social worker Costello that she did not feel comfortable with Dr. Zahedi and would not continue meeting with him but "agreed to work with another psychiatrist who specializes in addiction medicine., ..." Petitioner’s exhibit 2, TPR social study dated March 29, 2017, p. 5. A letter that social worker Costello sent the mother in January 2017, contained the names of four other psychiatrists. In February, however, the mother told Costello that she had chosen a different provider, Collaborative Psychiatric Associates in Plainville and had signed "an agreement with that practice that it does not treat people with addiction issues." Transcript of testimony of Kathleen Costello on May 4, 2017, p. 47. The APRN from that office later learned from social worker Costello about DCF’s addiction concerns, and Ms. S. only saw that person once or twice in 2017. In June 2017, Costello again sent her a letter with the four psychiatrists DCF was recommending that she contact.
Despite certain discrepancies and contradictions in the evidence, it was proven that by mid-2017 that Ms. S. was no longer being prescribed Xanax, Tramadol, and Adderall. Dr. Miller left his medical practice sometime during the first half of 2017, and for a while another practitioner in his former office prescribed medication for Ms. S. Social worker Costello confirmed in her testimony, which is found credible on this point, that by the time the mother stopped using that medical practice in mid-2017, her prescriptions were for Zymbalta, Neurontin and Wellbutrin.
The mother once again told DCF that she would find a prescriber on her own, and in September 2017, she had an intake at Community Mental Health Affiliates for "medication management." Petitioner’s exhibit 15, CMHA Records, Adult Intake Assessment on September 13, 2017, p. 1. She told Pamela Rosa, who conducted the intake, that she had "been receiving medication management from her PCP Dr. Miller for the past ten years," but "her primary doctor is currently non-practicing. Without medication to treat ADHD symptoms, the client states that she has difficulty with focus- is scattered and has [been] drinking ... to help cope with her symptoms." Id. Ms. S. told Rosa that she wanted to keep her current therapist, but that DCF wanted her to see a psychiatrist for medication.
That statement undercuts the reliability of the mother’s testimony at trial that by June 2017, her anxiety and ADHD were "under control." FTR, May 4, 2018, 4:23:52 p.m. - 4:24:01 p.m.
Rosa testified that the mother’s "core complaint" that day involved "ocus issues"- that she "struggles daily with attention, and focus tasks." Id., 11. The mother appeared anxious at the intake interview, and Rosa’s intake assessment noted that her "PHQ-9 is positive for depression," but Ms. S. "denies depressive symptoms." Rosa concluded that her "symptoms appear related to discontinuing mediation ..." Id., 9. Rosa recommended that CHMA "refer the client for medication management with a private provider," an interim psychiatric evaluation within the CMHA, and, because Ms. S. reported drinking to cope with stress, a weekly relapse group "until services are in place and therapist makes contact with RSVP worker to coordinate care." Id. Rosa explained at trial that "we were facilitating the group therapy around substance abuse."
CMHA usually does regular drug tests both at intake and during treatment but Ms. S. refused to do any drug screens at CMHA, despite being asked to do so at both the initial intake and at the psychiatric evaluation two weeks later, because she said she was being drug tested at RSVP. Ms. S. signed a release for CMHA to communicate with RSVP, which did tell CMHA that all the mother’s drug screens there were negative. Since October 2016, however, DCF social worker Costello has repeatedly asked the mother in letters and in person to participate in random drug screening at Wheeler Clinic and Costello has also asked Ms. S. to do a drug hair test there, but Ms. S. has not acceded to any of these requests. When asked at trial why she had not agreed to these requests, Ms. S. said the following: "I had done it previously and I was under the understanding that ... there was open communication about my status and urines" between RSVP and DCF. FTR, May 4, 2017, 4:45:23 p.m. - 4:45:39 p.m.
At trial social worker Costello explained why DCF wanted random drug testing and a hair test to be done at Wheeler Clinic in addition to RSVP drug testing. First, she said that the RSVP program was intended to be confidential and not for use in court proceedings and DCF wanted test results it could use for court. Next, she said that each of the RSVP monthly status reports, from the first report (after Ms. S. had completed the RSVP intake) for the period November 24 to December 23, 2015, to the last report for the period January 8 to February 8, 2018, reported that Ms. S. was non-compliant with the RSVP program. In addition, the RSVP reports merely document the number of drug screens requested, the number attended, and the number of positive or negative results, but do not document the substances tested for, the method of testing, whether the urine sample had been observed, and the interval between an RSVP request for a random drug test and the time that the client had to comply with that request.
Ms. S. met at least three times with the CMHA APRN. The first time was for a psychiatric evaluation in late September, at which Ms. S. told the APRN that she was "disorganized; can’t stay still; [and had] poor focus." She also said that she had a "panic/anxiety attack last week and took Xanax." Petitioner’s exhibit 15, Psychiatric Evaluation dated September 25, 2017. The APRN’s record of that interview shows that Ms. S. presented as anxious, spoke fast, and showed impaired attention and concentration and an irritable mood. The APRN diagnosed her as having bipolar disorder, a mood disorder, ADHD, and moderate substance abuse disorders. When Ms. S. disagreed with the bipolar diagnosis, CMHA agreed to remove that diagnosis; and Pam Rosa testified that she thought the bipolar diagnosis had not been well-documented or well-defended and that the symptoms of many mental disorders mimic each other.
DCF Social Worker Costello testified at trial that DCF had obtained a "CMHA report ... on day one of the trial saying that she [Ms. S.] had used Xanax in anticipation of day one of the trial ..." Transcript of testimony, January 16, 2018, p. 53. CMHA records were introduced into evidence, and the only reference to the mother currently taking any Xanax in those records was the reference in the text above to the mother’s admission on September 25, 2017, to taking a Xanax, not due to anxiety about trial but because of concern about a change in the children’s foster care placement. Absent any corroboration in the documentary records introduced by the commissioner, the court concludes the social worker’s testimony referred to in this footnote was mistaken, perhaps a misremembering of the mother’s September 25 admission.
The March 2018 MRP social study states that the APRN "would not prescribe Adderall to her at the intake on 9/25/17, as CMHA had checked the CT Prescription Monitoring Program (CT PMP) and noted that she had picked up a prescription for Adderall earlier that day." Petitioner’s exhibit 21, p. 10. This statement does not appear to be accurate. A documentary record from the psychiatric evaluation prepared by the APRN was contained in petitioner’s exhibit 15. That record indicates that the APRN did check the PMP on that day, and wrote the following: "9/25/17 long hx on adderall; tramadol 50 mg Xanax 1 mg." (The court assumes that "long hx" means "long history.") That same record from the psychiatric evaluation states, under the "Current Plan" to "start ... Adderall ..." (Emphasis added.) Id., 6. Thus the documentary record of that visit appears to contradict the statement contained in the social study, and the court does not find said statement to be reliable or credible.
After the psychiatric evaluation, the APRN prescribed Adderall to improve attention and lamictal for anxiety and mood instability. Three weeks later, Ms. S. told the APRN that her anxiety, mood laibility, and anxiety/irritability were worsening. The APRN then increased the lamictal dosage to address the mood issues and added a prescription for Wellbutrin "for attention/mood down." Petitioner’s exhibit 15, Session Information on Medication Management dated October 16, 2017. Three weeks after that, Ms. S. told the APRN that her attention was still worsening but her "mood laibility" and "anxiety/irritability" were stable or improving. Petitioner’s exhibit 15, Session Information on Adult Medication Management dated November 6, 2017. The APRN then increased the Wellbutrin dosage. Ten days later, she told her CMHA clinician that "her anxiety has been reduced by her new medication. She reports feeling calmer and states ‘I was even calm when I had court the other day.’ ... Client notes a decrease in anxious feelings. She also reports that she is okay with continuing to see her prescriber." Petitioner’s exhibit 15, Session Information on Adult Outpatient Individual Therapy, dated November 16, 2017. When social worker Costello obtained the CMHA records, read Ms. S.’s descriptions of her symptoms and that she had admitted recent alcohol use to cope with the DCF case and had taken an unprescribed Xanax, Costello again wrote the mother asking her to contact one of the psychiatrists that DCF had recommended.
Pam Rosa testified on April 23 that Ms. S. had recently been "successfully discharged from CMHA" after participating in various treatment groups there. She also said that Ms. S. "had not been happy with the med provider that we had" and was now engaged with a different provider. FTR, April 23, 2017, 4:00:59 p.m. - 4:01:03 p.m. The mother herself testified at trial that she did not believe "her conditions were well-treated" at CMHA. FTR, May 4, 2018, 4:38:09 p.m. - 4:38:14 p.m. Ms. S. said that about five months ago she started seeing a psychiatrist at the Hopbrook Counseling Center. She testified that she is currently prescribed Vynance and Visterol, that she feels her ADHD and anxiety are now well-managed, and that she is satisfied with her current prescription medications and is not using any other medications. The DCF social worker spoke with the new prescriber, Emily Stagg of Hop Brook Counseling, on February 21, confirmed that she prescribed these two medications, and was informed that the mother has also been prescribed Strattera.
Rosa also testified that Ms. S. had done very well in her group treatment and did not present as being under any kind of distress. She testified that it appeared that Ms. S. had "a good handle on her mental health condition," and "was doing well." FTR, April 23, 2017, 4:05:21 p.m. - 4:05:55 p.m. Rosa’s testimony directly contradicted the clear implications of the commissioner’s description of the mother’s progress at CMHA contained in the March 2018, MRP social study that Ms. S. had not complied with treatment at CMHA. Although acknowledging that she attended a relapse prevention group there from September to December of 2017, the MRP social study also stated as follows: Ms. S. "refused to follow their [CMHA’s] treatment recommendations for substance abuse, including random urine screens ... Ms. [S.] was a no-show to her therapy appointment with Ms. Sullivan [the CMHA clinician for the mother’s weekly therapy sessions there] and Ms. Sullivan last saw [Ms. S.] on 12/6/17 ... Ms. Sullivan reported that [Ms. S.] was a no-show to her 12/14/17 medication appointment and was last seen 11/16/17, when she was prescribed Wellbutrin 300 mg and Lamictal 25 mg, 2 tabs at bedtime." Petitioner’s exhibit 21, p. 10. It was clear from Rosa’s testimony at trial, which occurred on two different dates, that she did not have a clear personal recollection of all aspects of the mother’s treatment, and the court finds the more specific detail contained in the social study to be more accurate and credible than Rosa’s more generalized assertions. The CMHA records of the mother’s treatment are similar to the evidence about her treatment at Wheeler Clinic. At both facilities, she attended and participated in group meetings such that her participation in those was deemed to result in "successful" discharges. Both times, however, she did not cooperate with the medication evaluation to explore other possible pharmacological substances.
On April 19, 2017, the commissioner filed the pending petition to terminate the respondents’ parental rights to Scarlett. The petition to terminate their parental rights to Blair was filed on July 18, 2017. Both respondents appeared on the initial hearing right for the two petitions, were advised of their rights or appointed counsel in the proceedings, and entered denials to the allegations. Trials on the two petitions were consolidated.
II
ADJUDICATORY PHASE OF TPR PROCEEDING
In the adjudicatory phase of a proceeding under § 17a-112(j), the court must determine whether the Commissioner of Children and Families has proven by clear and convincing evidence both a statutory ground for termination of parental rights, and, except in certain instances, that the department complied with its reasonable efforts’ obligations. See In re Michael B., 49 Conn.App. 510, 512, 714 A.2d 1279, cert. denied, 247 Conn. 919, 722 A.2d 807 (1998); In re William R. III, 65 Conn.App. 538, 546, 782 A.2d 1262 (2001).
Under Practice Book § 35a-7(a), in the adjudicatory phase of the proceeding, "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." See also In re Anthony H., 104 Conn.App. 744, 757, 936 A.2d 638 (2007), cert. denied, 285 Conn. 920, 943 A.2d 1100 (2008). "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." (Emphasis omitted; internal quotation marks omitted.) In re Jennifer W., 75 Conn.App. 485, 495, 816 A.2d 697, cert. denied, 263 Conn. 917, 821 A.2d 770 (2003). Since there have been no amendments to the contested TPR petitions regarding the claims against Ms. S. since they were filed, the filing dates of petitions are therefore the adjudicatory dates on the two petitions to terminate her parental rights.
A
REASONABLE EFFORTS FINDINGS
In contested TPR proceedings brought under § 17a-112(j), the court must determine whether there is clear and convincing evidence that the department made reasonable efforts to locate the parent and to reunify the children with him or her, unless the court finds that the parent was unable or unwilling to benefit from reunification efforts. "hen making its reasonable efforts determination during the adjudicatory phase, the court is limited to considering only those facts preceding the filing of the termination petition or the most recent amendment to the petition ..." In re Paul O., 141 Conn.App. 477, 483, 62 A.3d 637, cert. denied, 308 Conn. 933, 64 A.3d 332 (2013). Since the father has consented to termination of his parental rights in the present matters, reasonable efforts’ findings are not required as to him.
General Statutes § 17a-112(j) provides, in pertinent part, as follows: "The Superior Court ... may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that (1) the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent in accordance with subsection (a) of section 17a-111b, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts, ..."
1. Reasonable Efforts to Locate
The evidence proved clearly and convincingly that the department made reasonable efforts to locate the mother. She was served with both petitions, attended all court proceedings, and been in regular contact with the department.
2. Reasonable Efforts to Reunify
The evidence shows that the issues leading to the removals of Scarlett and Blair from Ms. S.’s care and custody were her history of substance abuse and use of addictive prescription medicines. In addition, after the court-ordered psychological evaluation revealed the presence of anxiety and mood disorder that Dr. Leveille concluded the mother was self-medicating with opiates "rather than seeking the appropriate treatment for her disturbed emotional states"; petitioner’s exhibit 10, p. 37; an additional barrier to reunification was the mother’s need for appropriate psychiatric and therapeutic treatment.
This court has noted several times that "[e]fforts to reunify a parent with a child should begin with identifying any barriers to the parent being willing or able to meet the child’s needs and to provide the child with stable and competent care appropriate for the child’s age and needs, identifying culturally competent services or programs that are appropriate for addressing those barriers and helping the parent assume a responsible position in the child’s life, informing the parent of the steps they need to take to get their child back, and then referring a parent to those services and programs while at the same time providing the parent ongoing visitation with the child to help maintain their relationship." In re Samantha A., Superior Court, judicial district of New Britain, Docket No. H14-CP-14-011171A (May 20, 2016); see also In re Damiano D., Superior Court, judicial district of New Britain, Docket No. H14-CP-14-011165-A (February 1, 2017, Frazzini, J.T.R.).
The department here met all those obligations. It identified the barriers to reunification and appropriate services to address those barriers; it repeatedly informed Ms. S. of the need to engage in these services in order for Scarlett and Blair to be returned to her care, referred her to the various services and programs as recounted above, and offered her ongoing visitation. To help the mother with housing and employment, the department referred her to the Supportive Housing program, which helped her find and fund a subsidized apartment and financed her participation in a phlebotomy course. The department also provided three visits a week for Ms. S. with the children, and the evidence shows that the mother and children are developing a parent-child bond. The evidence thus proved clearly and convincingly that, as of the adjudicatory date for each petition, the department had made reasonable efforts to reunify each child with Ms. S. by referring her on multiple occasions to services and treatment providers to help her address these problems and providing ongoing visitation to develop and maintain a relationship with the children.
B
STATUTORY GROUNDS FOR TERMINATION
I. Mother- Failure to Rehabilitate After Finding of Neglect, § 17a-112(j)(3)(B)(i)
General Statutes § 17a-112(j) provides, in relevant part, that "The Superior Court ... may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that ... (3) ... (B) the child (i) has been found by the Superior Court or the Probate Court to have been neglected, abused 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 ..."
As statutory grounds for terminating Ms. S.’s parental rights to these two children, the TPR petitions allege, pursuant to § 17a-112(j)(3)(B)(i), that the children have previously been found neglected or uncared for, and that she has failed to achieve such a degree of personal rehabilitation as would encourage the belief that, within a reasonable time, considering the age and needs of each child, he could assume a responsible position in the life of either child. "Personal rehabilitation as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent ... [Section 17a-112] 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 she has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date she can assume a responsible position in her child’s life." (Citations omitted; internal quotation marks omitted.) In re Eden F., 250 Conn. 674, 706, 741 A.2d 873, reargument denied, 251 Conn. 924, 742 A.2d 364 (1999). "[I]n assessing rehabilitation, the critical issue is ... whether [the parent] has gained the ability to care for the particular needs of the child at issue." In re Danuael D., 51 Conn.App. 829, 840, 724 A.2d 546 (1999). The crux of the adjudicatory ground of failure to rehabilitate is whether a parent has sufficiently addressed the problems and deficiencies in parenting that led to state intervention so 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 within a reasonable time in the future. "What is a reasonable time is invariably a question of fact to be governed by attendant circumstances," depending on the age and needs of the particular child. In re Shannon S., 41 Conn.Supp. 145, 154, 562 A.2d 79, aff’d, 19 Conn.App. 20, 560 A.2d 993 (1989). For the reasons discussed below, the court finds this ground to have been proven by clear and convincing evidence.
a. Prior Adjudication and Provision of Specific Steps
Termination under § 17a-112(j)(3)(B)(I) requires proof that the child was previously found to have been neglected or uncared for. In the present case, both children have previously been found to be and adjudicated neglected, Scarlett on December 17, 2015, and Blair on April 13, 2017. In In re Elvin G., 310 Conn. 485, 504-06, 78 A.3d 797 (2013), the court held that this subsection of the TPR statute also requires proof that a parent had been provided an order of specific steps to take to facilitate the return of the child in question to that parent. Specific steps, copies of which were introduced into evidence, were ordered for and provided to the mother when each OTC was sustained and when each child was adjudicated neglected and then committed to the commissioner.
b. Mother’s Rehabilitative Status
The principal adjudicatory issue in a TPR petition brought under § 17a-112(j)(3)(B) is whether a parent has "rehabilitated," or, as the statute and cases explain, whether the parent was ready on the adjudicatory date or at the time of trial to assume a responsible position in the life of a particular child, in consideration of that child’s age and needs, or, if not ready at either of those times, will be ready to do so in a reasonable time. The principal reason that both children were removed from their mother’s custody and have not been returned to her is Ms. S.’s longstanding substance abuse. When she learned she was pregnant with Scarlett, her obstetrician told her to discontinue the Xanax and Tramadol that she was then prescribed, and the mother apparently did so. But she then used Vicodin and heroin during the pregnancy, and Scarlett’s health at birth was detrimentally affected by that use. In the year after Scarlett’s birth, Ms. S. repeatedly acknowledged to DCF that taking those medications had been harmful for the baby. When she learned she was pregnant a year later with Blair, however, she continued taking her prescriptions for Xanax and the synthetic opiate Tramadol despite knowing that either one could negatively affect fetal development and infant health.
Dr. Leveille testified at trial that Ms. S. is a "prescription drug addict" who uses her prescriptions to self-medicate her anxiety and depression rather than seeking the treatment she needs. In her report, she wrote that the mother was using opiates, originally prescribed for pain, "to suppress her emotions as well as her physical pain." Petitioner’s exhibit 10, p. 18. Before she learned she was pregnant, Dr. Leveille’s report noted that the mother "incorrectly interpreted her pregnancy symptoms as a recurrence of cervical cancer. By her account, she feared that she would die, and she resumed her use of opiates. She was anxious and felt hopeless, and the opiates helped to ‘treat’ these feelings." Id. After being told to discontinue the Tramadol during the pregnancy, she continued her use of opiates by taking Vicodin. Dr. Leveille’s report notes that it "is possible that Ashley felt discomfort from the injuries she had sustained in two car accidents as her pregnancy advanced," but "[c]ertain features of Ashley’s personality contributed to abuse of opiates, even after she learned that she was pregnant." Id. Dr. Leveille concluded that Ms. S. needed treatment by a psychiatrist who specializes in addiction medicine "to assess Ashley’s level of pain and the appropriate ways to manage that pain, clarify her psychiatric diagnoses, review her medications, make changes to her medication regimen, as necessary, and help her to develop strategies other than opiates to manage her pain." Petitioner’s exhibit 10, p. 38. Dr. Leveille’s conclusions about the mother’s drug addiction and mental health issues, the interaction between those issues, her need for more specialized treatment, and the child protection implications of these other conclusions withstood forceful and thorough cross examination and are found by the court to be credible, reliable, and true.
The evidence showed that the Xanax and Tramadol that had been prescribed by the mother’s longtime family physician, Dr. Gary Miller, are highly addictive. DCF repeatedly urged the mother to use other medications that were either not addictive or at least less addictive. When asked at trial whether "it is more likely than not that Ashley [S.] would be unable to meet her children’s needs if she was using Tramadol, Xanax and Adderall all at once," Dr. Leveille testified credibly that she "would be concerned that she [Ms. S.] would have lapses of meeting her children’s needs because her judgment may be impaired by the use of polypharmacy and that she would have periods in which she was foggy, sleeping too much and therefore not able to attend properly to her children." Transcript of testimony, November 13, 2017, pp. 14-15. As she testified, a drug addict "is focused on one self and that is where the issues have been increased risk [of] failing to meet the children’s needs arises." Id., 31.
Dr. Leveille did acknowledge, however, that merely taking the medications prescribed by Dr. Miller, if used as prescribed and not supplemented with other prescription medications or illegal drugs, would not necessarily present a child protective issue warranting separation of the mother from her children. She clarified at trial that her concerns in this case are based on the fact that Ms. S. took her prescribed medications "intermittently at will," rather than "exactly as intended"; id. 20; and that she uses the medication to mask mental health symptoms that she should instead be addressing in therapy. The mother’s statement that she used Vicodin while pregnant with Scarlett and her admission that she used Xanax in the fall of 2017, both at times that neither medication was currently prescribed for her, confirm Dr. Leveille’s conclusion that Ms. S. takes her prescriptions in ways other than originally intended. Her use of the Xanax that September, several months after her prescription for that medication had ended, because she was distressed by events occurring to the children in foster care shows ongoing use of prescription medications to "self-medicate" her anxiety and stress only two months before the trial on these petitions began. Moreover, the mother’s continuing to take Xanax and Tramadol that she knew could harm the fetus after learning she was pregnant a second time, not telling Dr. Miller that she was again pregnant so that he would not suspend those prescriptions, and not having any prenatal care at which her obstetrician would probably learn that she was taking medications potentially harmful to the fetus all show her placing her own need and desire to take those medications above the health of her unborn child.
In questions by the court, Dr. Leveille responded as follows:
The mother’s testimony at trial that she no longer takes or is prescribed either Xanax or any opiates would seem to address the department’s concern about her using highly addictive medications. Although social worker Costello testified at trial that DCF had also been concerned about the levels of Adderall prescribed to the mother, the mother’s Adderall prescription levels were reassessed by CMHA, and today she is not even on that medication but is instead now prescribed a different drug for her ADHD. This view of the evidence would also suggest that DCF’s child protection concerns since Scarlett’s removal about substance abuse are no longer warranted. From the beginning, DCF told her to stop using such highly addictive medications in order to reunify with her children, and she claims that she has now done so.
There is no direct evidence that the mother has used any controlled substance or illegal drug since Blair’s birth, except for her admission to one-time use of Xanax in the fall of 2017. Similarly, there is no direct evidence that she has used any medication other than those prescribed to her since Blair’s birth. The mother’s position to DCF and during trial has been that her continuing use of medications lawfully prescribed to her does not present a legitimate child protection issue warranting her children’s continued removal or termination of her parental rights. DCF’s position, since soon after filing the petition alleging Scarlett’s neglect, has been that the mother needed to discontinue using medications that were as addictive as Xanax or any natural or synthetic opiate.
In two letters dated November 9, 2017, the mother’s therapist, Kelly Fortin, wrote that Ms. S. has presented herself as "calm and focused in sessions" since Blair’s birth, has been "successfully using coping skills," and is now "mentally stable and capable of being a mother to her two daughters Scarlett and Blair." Mother’s exhibit C. Fortin concluded that "I do not believe at this time that Ms. [S.]’s mental health should negatively impact her children in any way." Id. Ms. S.’s claim that she continues to see her therapist weekly and that her anxiety and ADHD are under control under her new medication regimen, coupled with her therapist’s most recent assessments of her stability, would, similarly, seem to suggest that she is successfully addressing her mental health issues and is ready for reunification. (Although the various DCF exhibits contained some criticisms of the mother’s parenting skills and interactions with her daughters, DCF has always acknowledged that she has a strong bond with both children, and social worker Costello admitted at trial that the mother’s parenting interactions were never the basis for the children’s separation from her.) As noted in the margin, however, there are substantial reasons to question the reliability of therapist Fortin’s opinions.
The conclusion of her therapist that Ms. S. was successfully managing her anxiety and stress is found not to be credible. Only two months before therapist Fortin wrote her last letter to DCF making such an assertion, for example, the mother felt so anxious that she took a Xanax after the children’s foster care placement was changed. (In September 2017, the children were sent to a new foster home because their foster parents were being evicted after the landlord with whom they had a rent-to-own agreement lost the property in foreclosure.) Similarly, the offensive text message ("Do you have the fuckin kids again." Children’s exhibit AA) that she sent to the foster parents after the two girls were returned in April 2018, to their previous foster placement shows the mother’s inability to handle a stressful situation involving her children appropriately. That message also refutes Fortin’s recent statements that Ms. S. was successfully utilizing coping skills. (In March and July 2017, Fortin wrote that the mother "had learned an abundance of coping skills need in order to deal with the stress and anxiety in her life." Mother’s exhibits A and B, letters from Kelly Fortin dated March 7, 2017, and July 26, 2017. In November 2017, Fortin wrote that mother was "successfully utiliz[ing] coping skills." Mother’s exhibit C, letter from Kelly Fortin dated November 9, 2017.) The observations of CMHA clinicians in the fall of 2017 and early 2018 that Ms. S. appeared anxious and depressed on various occasions may have shown, as those clinicians concluded, the effect of the mother’s medications having been discontinued, but also confirm the existence of her continuing and ongoing mental health issues, as does the mother’s statement at the CMHA intake that she was drinking "to cope with her symptoms." Petitioner’s exhibit 15, Intake Assessment record for September 13, 2017, p. 1.
If Ms. S. had demonstrated a substantial period of only using more appropriate meditations, DCF’s claim that her therapist is not adequately addressing her mood issues might not now seem to be an adequate reason to prevent reunification. For almost two years, however, DCF has been asking the mother to undergo random drug testing to confirm her claims about the substances she is using, and she has refused. Although she did undergo random drug tests for the RSVP program, on many occasions she did not appear for drug testing when requested by RSVP. Moreover, the "negative" reports from RSVP do not address the department’s concern about Ms. S.’s use of addictive medications, since none of the RSVP reports for the periods when the mother acknowledged still using Adderall, Xanax and Tramadol had a "positive" result. Either the RSVP procedure does not test for any of these substances, or the presence of any such substance in the sample taken was not regarded as "positive." The drug tests that DCF wanted the mother to complete at Wheeler Clinic would have reported the presence of these substances.
The following statement contained in the MRP social study for Blair filed on April 5, 2018, is found to be credible and true: "The Department referred Ms. [S.] to a substance abuse evaluation and random toxicology screens in October 2016, and has renewed this evaluation every six weeks. Ms. [S.] has never presented herself for this evaluation or the random urine screens in the intervening 16 months. On 2/22/18, the Department referred Ms. [S.] for a hair test at Wheeler Clinic. Ms. [S.] has not presented herself for this test as of 3/19/18." Petitioner’s exhibit 21. Social worker Costello testified that before October 2016, Ms. S. had complied with DCF requests for random screens, but after Costello became the assigned social worker in October 2016, she requested the mother to participate in random drug screening and made referrals to Wheeler Clinic for that purpose approximately every six weeks, but Ms. S. refused to participate in those evaluations or drug screens. Some of the client referral forms for the evaluations and random drug screens are contained in petitioner’s exhibit 19.
Since there was no testimony from a representative of RSVP explaining the drug tests, the court cannot determine which of these alternatives is accurate. In closing argument, the mother’s attorney asserted that the latter was true, but there was no evidence or stipulation confirming that assertion.
For example, four random urine screens done by the mother at Wheeler Clinic in October 2015, were positive four times for amphetamines and benzodiazepines, and once for opiates and Suboxone. Similarly, from February 24 to May 23, 2016, when the mother’s five drug tests for RSVP were all reported to negative, three random drug screens at Wheeler Clinic during that same time showed her to be positive for Adderall and Xanax.
The requests by DCF that the mother submit to drug testing in addition to the RSVP tests were reasonable and appropriate. The specific steps ordered by the court and provided to the mother on six different occasions directed her to "[s]ubmit to random drug testing; the time and method of the testing will be up to DCF to decide." Petitioner’s exhibits 4 and 4A. She rejected the requests of CMHA staff that for random drug screens because, she said, she was being drug tested by RSVP, but in view of the inadequacy of the RSVP test results and the many random drug screens she missed at RSVP, that explanation does not excuse her refusal to comply with DCF’s requests. In addition, DCF continued to make that request this year after Ms. S. had been discharged by RSVP and was no longer being drug tested there. At trial the mother testified that she did not complete these tests "because I was under the understanding that it wouldn’t have made as much of a difference at that point." FTR, May 11, 2018, 2:24:54 p.m. - 2:24:59 p.m. When asked why she thought it would not have made much of a difference, she answered "We were already mid-trial." Id., 2:24:05 p.m. - 2:24:07 p.m.
Specific steps for Ms. S. to take to regain custody of Scarlett were ordered ex parte on September 29, 2015; in the mother’s presence at the preliminary OTC hearing on October 29, 2015 (and signed by the mother on that date); and in the mother’s presence at commitment of the child on December 17, 2015.
The refusal by Ms. S. to undergo the random drug screens at Wheeler Clinic and the hair follicle test requested by DCF is significant for two separate reasons. First, a parent’s compliance with specific steps has long been regarded as a measure of the parent’s progress toward being ready to assume responsibility for the child. See In re Shyliesh H., 56 Conn.App. 167, 179, 743 A.2d 165 (1999) ("[p]ersonal rehabilitation, therefore, is to be determined, in part, by compliance with those specific steps"); In re Jeffrey C., 64 Conn.App. 54-55, 62, 779 A.2d 765 (2001), rev’d on other grounds, 261 Conn. 189, 802 A.2d 772 (2002). Her unwillingness to comply with this specific step raises, at minimum, serious doubt about her progress toward being ready to assume that responsibility. Second, it permits an adverse inference here that the mother has continued to abuse prescription medicines or use illegal drugs. See In re Shane M., 318 Conn. 568, 594-97, 122 A.3d 1247 (2015). A hair follicle test would have been particularly important as a means of corroborating the mother’s testimony that she was not taking any medication or drugs other than those prescribed by her current APRN.
During closing argument, Ms. S.’s attorney challenged the propriety of such an adverse inference here from the mother’s refusing to participate in random drug testing, even if requested by DCF or ordered in the specific steps, after the filing of the TPR petitions. The parties were directed to file briefs on this issue, which were submitted by July 2, 2018.
See also In re Janazia S., 112 Conn.App. 69, 87, 961 A.2d 1036 (2009), stating as follows: "In its memorandum of decision, the court stated, inter alia, that the ‘[m]other’s denial of marijuana use and her refusal to submit to hair testing is indicative of either two things: she is not sufficiently abstinent from use and understands the detrimental impact of a positive hair test or she is abstinent but fails to comprehend the positive import of a negative hair test. Either scenario supports an adjudication of failure to rehabilitate in that Janazia needs a caregiver who is unequivocally substance abuse free and who has the necessary insight as to why proof of sustained sobriety is so vital to Janazia’s well-being.’ " This language was also quoted and relied upon in In re Paulina R., Superior Court of Connecticut, Judicial District of Middlesex, Docket No. F04CP06007214A (Feb. 19, 2009, Olear, J.) (2009).
The timing of the mother’s initial refusal to submit to drug testing is also significant. Until approximately the late summer of 2016, Ms. S. would have had reason to hope that the child protection proceeding on behalf of Scarlett would end favorably and soon. She had been participating in the counseling requested by DCF, complied with DCF requests for drug screening, and successfully completed the substance abuse treatment recommended by DCF. The MRP filed on June 15, 2016, was recommending reunification; and the MRP social study even stated that "the target date for reunification is 8/28/16." Social study in support of permanency plan, dated June 8, 2016. Although social worker Brady may have told her that DCF was concerned about her medications, Ms. S. thought then that the department’s principal concern was heroin usage. In a short period of time, however, it would have been absolutely clear that the case might not be headed in a favorable direction. Dr. Leveille’s report was issued on July 15, 2016, and said that the mother’s use of Xanax and Tramadol was "abusive" and that Ms. S. had serious psychological issues that should prevent reunification until addressed. Then, three months later, claiming that the mother’s substance abuse represented a danger to the newly-born Blair, on October 17, 2016, the department sought and obtained an OTC and filed a neglect petition on behalf of the infant. By then, it should have been clear to Ms. S. that her current medication regimen might prevent any reunification with either child. She decided she would no longer agree to drug testing requested by the department. She also began falsely claiming to DCF that Dr. Miller was in the process of tapering her off from her medications, a claim that turned out not to be true for several months. The only logical inference from her failure to submit to drug testing is that she wanted to conceal from the department what drugs she was taking.
Ms. S. thus testified at trial as follows in direct examination by her attorney:
During direct examination by her attorney at trial, Ms. S. testified as follows:
On December 20, 2016, Ms. S. told social worker Costello at DCF that Dr. Miller had that month "put her on a detox from all her medications and slowly reintroduced them to her." Petitioner’s exhibit 2, TPR social study, p. 12. At trial she testified that had weaned completely her off the Xanax by December 2016, and the Tramadol by January 2017. These claims that Dr. Miller had reduced her medication amounts on those dates were not true. Although Dr. Miller had reduced the mother’s daily prescription for Xanax in April 2016 from three pills a day to two, he did not further reduce any of her prescription that year. She filled her last Xanax prescription on April 27, 2018. The evidence also shows that the mother did not meet with Dr. Miller in December 2016, contrary to her claim.
*20 In addition to the adverse inference, the mother’s prior lack of candor about her drug history and treatment presents another reason not to credit her testimony about her current substance use. For example, when she met with the DCF investigator in the hospital after Scarlett’s birth, she said that she had never been in treatment before, but in fact she had gone the previous year to CMHA seeking "an individual therapist to process stressors, and ... a prescriber to explore medication options to address depression and anxiety." Petitioner’s exhibit 15, CMHA Intake Assessment dated January 30, 2014, p. 7. CMHA then diagnosed her with PTSD, ADHD, panic disorder with agoraphobia, alcohol abuse, and opioid dependence, and she agreed to CMHA’s treatment recommendations for individual therapy and medication management; but she was later "discharged due to disengagement from services." Petitioner’s exhibit 15, CMHA Discharge Summary dated May 30, 2014, p. 1. Similarly, in 2013 she had gone to Dr. Miller for help because she was "taking too many Tramadol"; petitioner’s exhibit 20, Dr. Miller’s progress notes for September 20, 2013. Another example is her false claim that an obstetrician had approved her continuing use of Xanax and Adderall when she was pregnant with Blair. She also claimed at trial never to have used heroin despite what she told hospital staff after Scarlett’s birth, at a time when she was more likely to have been truthful.
Dr. Leveille’s written answer in the psychological evaluation to the question of whether Ms. S. has a good understanding of Scarlett’s needs and the capacity to meet them also applies to Blair, who was born after Dr. Leveille submitted her report, and aptly describes the contradiction between the mother’s observed ability to respond appropriately to the children and their needs during visitations and during the interactional phase of the psychological evaluation and the long-term risk that her ongoing substance abuse poses to the children:
During supervised interactions with her daughter, Scarlett, Ashley [S.] demonstrated that she has a good understanding of some of Scarlett’s needs, and she has demonstrated that in supervised visitations with Scarlett, she has the capacity to meet Scarlett’s needs during those times. During visits, Ashley provides affection and stimulation for Scarlett. She is attuned to her medical needs. She wants to be included in all of Scarlett’s medical appointments, and she should be included. Unfortunately, Ashley’s serious substance abuse issues may negatively affect her parenting of Scarlett over the long term. I do not believe that Ashley [S.] would intentionally hurt Scarlett or consciously neglect her; however, Ashley’s substance abuse may affect her judgment and her alertness when caring for Scarlett. During her pregnancy with Scarlett, Ashley placed her own needs and desires above those of Scarlett by continuing an untrammeled and illegal use of prescription opiates while Scarlett was developing in her womb. Ashley still has not come to terms with the implications of her dangerous behavior in this regard, even though she is beginning to acknowledge that her opiate use during the pregnancy was "selfish and stupid." Ashley does recognize that mental health professionals and the child protection authorities are concerned about her current use of opiates and benzodiazepines, yet she has resisted attempts to alter this regimen. This resistance represents Ashley’s continuing to place her unhealthy needs above the needs of her daughter.
Like any young child, Scarlett needs a parent whose judgment is not clouded by drugs. Ashley has not yet demonstrated that she is willing to make those changes that would her enable her to be a sober and responsible parent to her child. I believe that Ashley has the capacity to become such a parent for Scarlett if she becomes honest with herself about her substance abuse and problems with mood and affect regulation and if she engages in a life-long process of remaining sober and addressing her mental health problems in constructive ways.
Petitioner’s exhibit 10, pp. 40-41. The court concurs with Dr. Leveille’s further conclusion, which is found to be credible and supported by the other evidence found to be reliable and probative, that in order for reunification to occur, Ms. S. must address her mental health and substance abuse issues and will not be ready to assume a responsible position in Scarlett’s (or Blair’s) life "until such time as [she] has sufficiently addressed her behavioral problems, which include her substance abuse issues, (specifically her prescription drug addiction), problems with mood and affect regulation, and unhealthy personality features." Id., 41.
These are both young children. Scarlett is not quite three years old, and Blair not quite two years old. Their first and most obvious need, both when the petitions were filed, (the adjudicatory dates), and at the conclusion of trial was for a sober, responsible adult caretaker who will keep them safe and provide them with stable, competent, and consistent care on a permanent basis. Safety is a paramount need for a child of either age. At their ages, neither one is yet capable of the judgment necessary to keep herself safe. Toddlers of their ages at the end of trial are mobile and can be active, but they lack common sense. Dangerous situations can occur quickly for a toddler and each of these children is completely dependent on a vigilant, alert and competent caretaker to keep her safe. According to the children’s father, who lived with Ms. S. for six years, however, the mother "sleeps a lot," which Dr. Leveille stated is "consistent with her heavy use of opiates and benzodiazepines." Petitioner’s exhibit 10, p. 27. Drowsiness and drug usage are also consistent with the reports of DCF visitation supervisors that the mother was "out of it" during some visitations. In addition to this need for physical safety is each child’s need for love, affection and nurture, stability, and permanency.
Social worker Costello testified as follows during cross examination by the mother’s attorney:
Although both children were born prematurely and experienced withdrawal symptoms after birth, the evidence does not disclose any serious medical or developmental issues for either child. Blair’s cleft lip was described by social worker Costello as "very, very minor" and needing only regular monitoring at present. Birth to Three evaluations of the two children revealed possible hearing problems, apparently the result of chronic fluid in their ears, for which Blair recently had tubes inserted, and Scarlett is now being assessed for possible tubes. Blair also apparently has some possible speech delay, as she has been receiving speech services every other week since a Birth to Three assessment in November 2107. Fortunately, the March 2018 MRP social study reported that she has made "excellent progress in her language development." Petitioner’s exhibit 20, MRP social study dated March 19, 2018.
The feasibility of the children’s return to their mother has always been dependent on her willingness to stop using addictive or illegal drugs. They need a parent who is alert and vigilant, and able to protect these children at their vulnerable ages. Ms. S. has engaged in many services and attended individual counseling, but she has been dependent on drugs for a long time. The opiates prescribed for pain connected with cancer, surgeries, or injuries may once have been appropriate and even necessary to manage that pain. The evidence shows, however, that she has serious mental health issues, and over time she also began using the opiates to cope with stress and other feelings generated by her mental health issues. Over time she also became dependent on another addictive substance, benzodiazepine.
Since the first OTC, the records of Ms. S.’s treatment show an unwillingness to consider other medications. Four times during the course of these proceedings, she has discontinued seeing a prescriber attempting to medicate her with less addictive substances. She said she was open to tapering off her Xanax when she met with APRN Kathy Kirwin at Wheeler Clinic in January 2016, but she never attended any follow-up appointments. She stopped seeing Dr. Zahedi when he recommended different medications than the ones she was taking. She claimed at trial that the medications being prescribed by Dr. Miller’s practice were working for her, but she stopped going there also. Although she had told CMHA staff that the medication being prescribed for her seemed to be working, she stopped attending that facility and did not follow up on more medication appointments. At trial she claimed that the medications now prescribed by Hopbrook are working, but her testimony is not convincing in light of her refusal to undergo drug screening and also in light of her stopping the use of medications last prescribed by Dr. Miller’s former office and by CMHA that she had said were working. At trial she exhibited the same minimization of her substance abuse and the effects of that abuse on the two children that Dr. Leveille had noted during the psychological evaluation.
The mother’s course of treatment at CMHA in 2017 is similar to what happened in 2014. She went to CMHA in January 2014, saying that "she would like to see an individual therapist to process stressors, and meet with a prescriber to explore medication options to address depression and anxiety." Petitioner’s exhibit 15, CMHA Records, Adult Outpatient Intake Assessment dated January 30, 2014, p. 7. Rather than pursue her stated goals, however, she ceased contact with the facility in March and was discharged from treatment in May "due to disengagement in services." Petitioner’s exhibit 15, CMHA Records, Discharge Summary dated May 30, 2014, p. 1.
For example, at trial Ms. S. claimed that she had taken only "a couple of Vicodin" during her pregnancy with Scarlett; see transcript of testimony, May 4, 2018, p. 34; and never used heroin, in contradiction of what she told the hospital staff and DCF investigator at the hospital and Dr. Leveille during the psychological evaluation. She claimed she had never used heroin despite having admitted such usage on numerous occasions. She also denied Blair had needed treatment for withdrawal symptoms.
On balance, the court finds it proven by clear and convincing evidence that the respondent mother had not sufficiently rehabilitated herself as of the adjudicatory dates or the time of trial that she was ready on any of those occasions to assume a responsible position in the lives of these two children or would be so ready in a reasonable time. The mother’s assertions that she no longer is using opiates, addictive medications, or other illegal drugs are not credible in the face of her refusal to undergo drug testing that could easily have confirmed (or refuted) those assertions. It is far more likely instead that she is instead continuing to use opiates or other unprescribed drugs. Although Ms. S. has made claims that, if credible, would undermine the petitioner’s case, the reliability of her evidence and claims is itself substantially undercut by her refusal for the last year and one-half to undergo the drug testing requested by DCF. Although she may no longer be prescribed the medications that DCF, Dr. Leveille, and Dr. Zahedi all thought were a child protection danger, the only reasonable inference from her failure to submit to random drug tests or a hair follicle test is that she is continuing to use illegal drugs (such as the heroin and cocaine she has admitted using in the past) or unprescribed addictive medications (such as the Vicodin, Tramadol, or Xanax she has been prescribed in the past). Her refusal to submit to this drug testing, thereby concealing her likely ongoing drug use, moreover, confirms Dr. Leveille’s fear that she would put her need and desire for drugs above the needs of her children. The ground pleaded for termination of the mother’s parental rights to these two children as specified in § 17a-112(j)(3)(B)(i) that she was not ready on the adjudicatory date for each petition or at the time of trial to assume a responsible position in the life of these children, in view of their ages and needs, and will not be ready to do so in a reasonable time, was proven by clear and convincing evidence.
In the mother’s post-trial submission, she argues that any "negative inference should be limited to an inference of the use of prescribed substances rather than illicit ones, as there is no evidentiary foundation to infer a use of substances other than those prescribed to her." Respondent Mother’s Citations to Case Law, filed June 26, 2018. Contrary to this assertion, however, the evidence shows that the mother used heroin during her pregnancy with Scarlett, had used cocaine and marijuana in the past, and used Vicodin and Xanax at times after those substances were no longer prescribed. In the absence of drug testing, one cannot know what drugs the mother is using and concealing.
2. Father- Consent- § 17a-112(a) and (i)
General Statutes § 17a-112 provides, in relevant part, as follows: "(a) ... If a petition indicates that either or both parents consent to the termination of their parental rights, or if at any time following the filing of a petition and before the entry of a decree, a parent consents to the termination of the parent’s parental rights, each consenting parent shall acknowledge such consent on a form promulgated by the Office of the Chief Court Administrator evidencing that the parent has voluntarily and knowingly consented to the termination of such parental rights ... (i) The Superior Court upon hearing and notice ... may grant a petition for termination of parental rights based on consent filed pursuant to this section if it finds that (1) upon clear and convincing evidence, the termination is in the best interest of the child, and (2) such parent has voluntarily and knowingly consented to termination of the parent’s parental rights with respect to such child."
As noted above, after being defaulted for not appearing on the first day of trial on the petitions, the respondent father came to court on the second day of trial with his attorney and submitted his written consent to termination of his parental rights, which the court accepted after canvassing him. The petition was then amended to allege consent as the sole grounds for terminating his parental rights to the two children. It is found by clear and convincing evidence that he knowingly and voluntarily consented to termination of his parental rights with respect to each of these two children.
III
DISPOSITIONAL PHASE OF TPR PROCEEDING
Having concluded that clear and convincing evidence proved a statutory ground for termination of the parental rights of the two respondents to these two children, the court must next proceed to the dispositional phase, in which "there must be a showing by clear and convincing evidence whether termination is in the best interests of the child." In Re Brian T., 134 Conn.App. 1, 11, 38 A.3d 114 (2012). On disposition the court may consider information through the close of the evidentiary hearing.
A
STATUTORY FACTORS
In making the dispositional decision in a nonconsensual TPR proceeding, the court is mandated to consider and make written findings regarding seven factors specified in General Statutes § 17a-112(k). See, e.g., In re Tabitha P., 39 Conn.App. 353, 362, 664 A.2d 1168 (1995). "The ... factors serve simply as guidelines for the court and are not statutory prerequisites that need to be proven before termination can be ordered ... There is no requirement that each factor be proven by clear and convincing evidence." (Citation omitted.) In re Victoria B., 79 Conn.App. 245, 261, 829 A.2d 855 (2003). The factors are not required considerations in a TPR based on the ground of consent, as is the case for the respondent father.
General Statutes § 17a-112 provides in pertinent part as follows: "(k) Except in the case where termination of parental rights is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (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; (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; (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; (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; (5) the age of the child; (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; and (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."
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- § 17a-112(k)(1)
As discussed above, the department offered timely and appropriate services to address the mother’s substance abuse and mental health issues, while also providing regular visitation for her to develop and maintain bonds with her children and parenting education from her therapist and then Community Residences, Inc. In addition, the department referred her to the Supportive Housing program, which enabled her to find housing for herself and the children if reunification occurred and funded the phlebotomy course as a job training opportunity for her.
2. [W]hether [DCF] has made reasonable efforts to reunite the family pursuant to the federal Adoption and Safe Families Act of 1997, as amended- § 17a-112(k)(2)
DCF made such efforts for the mother, as discussed earlier.
3. [T]he 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- § 17a-112(k)(3)
Specific steps were ordered and agreed to by the mother in connection with the OTCs for and commitments of both children on numerous dates, set forth above, between September 29, 2015, and April 2017. Those steps were as follows:
Keep all appointments set by or with DCF, including cooperating with home visits by DCF or the children’s attorney. The mother did not fully comply. She attended the administrative case review meetings held periodically at DCF. She was not willing to comply with all of DCF’s requests for home visits. Until March 2017, she did not have her own housing and spent most of her time at the home of a boyfriend. She agreed to one DCF home visit there but generally would not meet department representatives saying that it was not the place where the children would reside upon reunification. After she found her own apartment through Supportive Housing in March 2017, she agreed to more home visits but her desire for her attorney to be present complicated the scheduling of visits and the mother was not present for two of the visits that were scheduled. Although the DCF social worker tried to make monthly visits, in 2017 only five visits actually occurred.
Keep whereabouts known to DCF, your attorney, and child’s attorney. Ms. S. complied.
Take part in parenting and individual counseling and make progress toward the identified treatment goals: Individual Counseling: Ms. S. has actively participated in mental health counseling since January 2016. Although the court has not found all of her therapist’s opinions and conclusions credible, it does appear, and the department concedes, that Ms S. has made some progress in that counseling, but the degree of progress is unclear. The department has asserted that the mother’s therapist is not addressing all of the mental health issues identified by Dr. Leveille. As noted in footnote 7 on page 12, Fortin maintains that her therapy with the mother is addressing mood issues. But Fortin has specifically said that she has not diagnosed the mother with, or been treating her for, a personality disorder, which Dr. Leveille believed was presented by the mother’s mental health issues. Dr. Leveille had spoken with Fortin about Fortin’s work with the mother and had assumed that therapy would continue. Based on the mother’s admission of increased drinking to cope with stress after Dr. Miller stopped prescribing for her and of taking a Xanax after she learned that the children’s foster placement had changed, however, it is apparent that, even if she has made progress toward identifying triggers for substance abuse, she has not adequately developed adequate alterative coping mechanisms so that she can be trusted to maintain a home environment free from substance abuse. Dr. Leveille’s concluded credibly that the mother had to address her substance abuse before therapy could adequately address her mental health issues. In view of the mother’s continued substance abuse that the court has inferred from the mother’s refusal to submit to random drug testing, it is likely that she is not making significant or adequate progress toward dealing with her substance abuse and mental health issues.
Parenting Counseling : Ms. S. has participated in parenting counseling services from both her own therapist and Community Residences, Inc., (CRI), which has been providing parenting education during one supervised visitation a week since last July. DCF has asserted that it has been unable to assess her parenting because she always brings one of her own parents to the supervised visit. There have also been some negative reports about the visitations. CRI, for example, has said to DCF that Ms. S. "struggles to incorporate the elements of the curriculum into her visits with her children" and that on occasions the mother has used curse words in front of her children during the visits. There were also reports in the past of her seeming impaired at visits. But the evidence about the mother’s visitations does not give any basis for concluding that she is not making progress toward the goal of learning and demonstrating age appropriate parenting skills. In general, she has demonstrated the ability to interact appropriately with her children.
Cooperate with recommended service providers: Various service providers were recommended by DCF to address the specific steps, and the mother cooperated with some of them, but not with all.
Ms. S. cooperated with the agency through which she obtained a Supportive Housing rent subsidy and job training.
She also initially cooperated with the department’s referral to Wheeler Clinic for substance abuse evaluation, testing and treatment. She did not cooperate with the department’s later requests for another such evaluation and more random drug screening. She also complied with the department’s recommendation contained in the specific steps issued after Blair’s birth that she cooperate with "Kelly Fortin, therapist, or equivalent," as she has attended counseling with Fortin since January 2016.
Dr. Leveille had recommended that Ms. S. meet with a psychiatrist specializing in addiction, and the specific steps ordered after Blair’s removal identified "Dr. Sohrab Zahedi or equivalent addiction specialist" as a recommended service provider. The mother’s level of compliance with this recommendation is difficult to discern. She initially complied with this recommendation by meeting with Dr. Zahedi, but then she stopped seeing him after three sessions. Both the department and the mother’s therapist then provided her with names of other psychiatrists with such a specialization on at least three occasions (twice by the department and once by Fortin). Rather than treating with any of those psychiatrists, the mother instead sought medication evaluation and prescription from Community Mental Health Affiliates, where she met with an Advanced Practice Register Nurse. After being dissatisfied with the medications being prescribed by CMHA, she sought medication from Emily Stagg at Hop Brook Counseling. The evidence does not disclose whether Ms. Stagg is a psychiatrist. The evidence also does not disclose whether the APRN at CMHA or Ms. Stagg is an addiction specialist, as was specifically recommended by Dr. Leveille.
The mother has not fully complied with the service provider providing parenting services, since that agency (CRI) has asked her not to always bring her parents so that it can assess her parenting skills when not being aided by anyone else.
Submit to substance abuse evaluation and follow treatment recommendations: The mother initially complied with the department’s request for substance abuse evaluation and then followed the ensuing treatment recommendation- she participated in an intake at Wheeler Clinic in late September 2015, and then participated in and completed the various recommended treatments, including participating in a substance abuse intervention and Women in Healing groups, then an intensive outpatient program, and finally a relapse prevention group. When DCF later requested that she participate in another substance abuse evaluation, she refused to do so.
Submit to random drug testing, the time and method of the testing to be decided by DCF : As discussed earlier, the mother has not complied.
*26 Do not use illegal drugs or abuse alcohol or medicine: The mother has not complied. She took a Xanax and consumed alcohol to cope with stress in the latter part of 2017. The court has also inferred that she continues to use illegal drugs or illegally-obtained medications.
Sign releases allowing DCF to communicate with the parents’ service providers and your child’s attorney to review your child’s records . Mother complied, except for a release that DCF requested for her gynecologist.
Cooperate with court-ordered evaluations . Mother complied.
Get and/or maintain adequate housing and legal income: Through the Supportive Housing program to which DCF referred Ms. S., she was obtain to obtain suitable housing. She has not had gainful employment during the two child protection proceedings, even after she completed a phlebotomy course to which Supportive Housing referred her. She is reportedly seeking employment but currently has legal income in the source of family contributions (although she also acknowledges working "under the table," i.e., without reporting the income for her father on occasion). She told Dr. Leveille that the time demands of the DCF case prevent her from working for him very much.
Identify changes in household composition . Mother has complied.
No involvement in the criminal justice system . Comply with probation or parole. Mother has complied.
Visit child(ren) as often as DCF permits . Mother has complied. She sees the children three times a week for two hours a session. Two of those visits are supervised by DCF, and one by CRI, which also provides parenting education during the visits. She generally has positive interactions with them and is bonded with them, although on a few occasions the DCF staff supervising visits have believed that the mother was impaired during the visitation.
Supply names and addresses of grandparents and of persons the parent would like DCF to consider as a placement resource . Mother complied.
At the initial hearing on both TPR petitions, the mother had advised by the court that she had the right to have her attorney present if she agreed to answer questions about these cases. See FTR, May 11, 2017, 10:32:21 a.m. - 10:32:27 a.m. and August 16, 2017, 10:43:30 a.m. - 10:43:40 a.m. The court thus draws no adverse inference from the desire of the mother that her attorney be present for the social worker’s home visits.
The goals identified in the specific steps for Ms. S. were as follows:
"[P]ursuant to the court-ordered psychological evaluation in June 2016, Ms. [S.] was recommended to address her mood and affect regulation and unhealthy pesonality features. To date, a treatment plan has not been developed to address these concerns." MRP social study for Blair dated March 19, 2018, p. 3.
MRP social study dated March 19, 2018, p. 5.
The fact that the mother works sometimes for her father was one of the reasons that Dr. Leveille questioned the mother’s use of Tramadol and concluded that Ms. S. was using her opiate medication for more than just pain: "Ashley told this examiner that she has worked in her father’s flooring business since she was a child. She stated proudly that she worked side-by-side with her father laying tile, even when she was pregnant and her back was hurting." Petitioner’s exhibit 10, p. 6. "Ashley insists that she requires opiates to manage her pain, yet by her own account, she has been able to work side-by-side her father laying tiles, a heavy and taxing job that one would expect that an individual who requires major analgesics could not perform." Id., p. 37. At trial, Dr. Leveille testified that the mother "was, according to her primary care physician, receiving 400 milligrams of Tramadol a day. That is the maximum dose of pain medication. And I was surprised because she- Ms. [S.] had told me that she was laying tile with her father and it just seemed that if you were able to lay tile you cannot require a maximum dose of an opiate." Transcript of testimony, November 13, 2017, pp. 5-6.
4. [T]he 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- § 17a112(k)(4)
Scarlett was placed in her current non-relative foster home in September 2015, shortly after the OTC, and Blair was placed there in February 2017, after foster care in a different non-relative home. They both remained there until September 2017, when they had to be placed in a different home, where they stayed until February 2018, when they returned to their former foster family. They have remained in that home since. Scarlett has thus spent almost two and a half years in that home, and Blair has been there for more than 12 months, but not continuously for either one. They have both adjusted well to that home. Scarlett calls the foster mother "mama" and the foster father "dada." The children are very affectionate with and bonded to their foster parents. The children also have positive and loving ties with their mother, whom they see three times a week. They do not have any positive feelings for or ties with their father, who has not seen Scarlett for almost two years and has never seen Blair.
5. [T]he age of the child(ren)- § 17a-112(k)(5)
Born on September 16, 2018, Scarlett is two years and eleven months old. Born on October 7, 2016, Blair is one year and ten months old.
6. [T]he 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- § 17a-112(k)(6)
The respondent mother has undertaken numerous efforts to adjust her "circumstances, conduct, or conditions" to make it in the best interest of these child to return to her home. She has been in individual counseling for two and a half years. She participated in substance abuse treatment at Wheeler Clinic in the fall of 2015 and first half of 2016. She participated in the RSVP program to address her substance abuse. She has visited regularly with the children. But, sadly, she has not followed through on DCF’s many requests for ongoing drug screening so that her willingness and ability to stop using addictive substances could be monitored and verified, and until her substance abuse is under control it will not be in either child’s best interest to return to her home.
7. [T]he 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- § 17a-112(k)(7)
There is no evidence of any such unreasonable act, or that the mother’s economic circumstances have prevented her from maintaining a meaningful relationship with the children.
B
BEST INTEREST OF THE CHILDREN
The final element of the termination of the parental rights statute, § 17a-112(j), requires that, before granting a petition for such termination, the court must find "by clear and convincing evidence that ... (2) termination is in the best interest of the child ..." The best interest standard is inherently flexible and fact-specific to each child, giving the court broad discretion to consider all the different and individualized factors that might affect a specific child’s welfare. In determining that terminating the respondents’ parental rights is in the best interest of these two children, the court has considered various factors, including their interests "in sustained growth, development, well-being, and in the continuity and stability of [their] environment"; Capetta v. Capetta, 196 Conn. 10, 16, 490 A.2d 996 (1985); each one’s age and needs; the length and nature of their stay in foster care; the lack of contact each child has had with their father; potential benefit or detriment of their retaining a connection with their biological parents; their genetic bond to the respondents; In re Savanna M., 55 Conn.App. 807, 816, 740 A.2d 484 (1999); and, with regard to Ms. S., the seven statutory factors and the court’s findings thereon. The court has also balanced each child’s intrinsic need for stability and permanency against the potential benefit of maintaining a connection with the respondents. 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).
These two children are still quite young and in addition to needing a safe and competent caretaker they need permanency. Although the mother engaged in substance abuse treatment at least three times during these proceedings- at Wheeler Clinic in 2015 and 2016, with RSVP from 2015 into 2018, and at CMHA in 2017-2018- the evidence shows that none of that treatment has successfully addressed her substance abuse. The best interest of these young children requires a parent who does not abuse addictive substances. The evidence shows that this mother does not meet and has shown no willingness to meet that requirement either now or in the future. The court thus finds by clear and convincing evidence that it is the best interest of both children to terminate the parental rights of the respondent mother.
With regard to the respondent father, he has shown no interest in meeting the needs of these children, has not maintained contact with them, has mental health issues that make him unfit to care for them, and has agreed to end his role as their parent. It was proven by clear and convincing evidence that terminating his parental rights is also in the children’s best interest.
IV
PERMANENCY PLAN
The permanency plan proposed by the commissioner for Blair is termination of the respondents’ parental rights and adoption. An MRP is governed by General Statutes § 46b-129(k) and Practice Book § 35a-14. Under each provision, the commissioner has the burden of proving by a fair preponderance of the evidence that the proposed permanency plan is in the best interests of the child or youth. Under the statute, "[a]t a permanency hearing held in accordance with the provisions of subdivision (1) of this subsection, the court shall approve a permanency plan that is in the best interests of the child or youth and takes into consideration the child’s or youth’s need for permanency. The child’s or youth’s health and safety shall be of paramount concern in formulating such plan." General Statutes § 46b-129(k)(2). The practice book makes clear that a permanency plan is a dispositional issue:
General Statutes § 46b-129 provides in relevant part: "(k)(1)(A) ... The commissioner shall have the burden of proving that the proposed permanency plan is in the best interests of the child or youth ... (2) At a permanency hearing held in accordance with the provisions of subdivision (1) of this subsection, the court shall approve a permanency plan that is in the best interests of the child or youth and takes into consideration the child’s or youth’s need for permanency. The child’s or youth’s health and safety shall be of paramount concern in formulating such plan."
Practice Book § 35a-14 provides in relevant part: "(d) Whether to approve the permanency plan and to find that reasonable efforts to achieve the goal of the existing plan have been made are dispositional questions, based on the prior adjudication, and the judicial authority shall determine whether it is in the best interests of the child or youth to approve the permanency plan and to find that reasonable efforts to achieve the goal of the existing plan have been made upon a fair preponderance of the evidence. The commissioner of the department of children and families shall have the burden of proving that the proposed permanency plan is in the best interests of the child or youth and that it has made reasonable efforts to achieve the goal of the existing plan. (e) At each hearing on a motion for review of permanency plan, the judicial authority shall ... (2) review the status of the child or youth, (3) review the progress being made to implement the permanency plan, (4) determine a timetable for attaining the permanency plan, (5) determine the services to be provided to the parent if the court approves a permanency plan of reunification and the timetable for such services, and (6) determine whether the commissioner of the department of children and families has made reasonable efforts to achieve the goal of the existing permanency plan. The judicial authority shall also determine whether the proposed goal of the permanency plan as set forth in General Statutes § 46b-129(k)(2) is in the best interests of the child or youth by a fair preponderance of the evidence, taking into consideration the child’s or youth’s need for permanency. The child’s or youth’s health and safety shall be of paramount concern in formulating such plan. If a permanency plan is not approved by the judicial authority, it shall order the filing of a revised plan and set a hearing to review said revised plan within sixty days."
Whether to approve the permanency plan and to find that reasonable efforts to achieve the goal of the existing plan have been made are dispositional questions, based on the prior adjudication, and the judicial authority shall determine whether it is in the best interests of the child or youth to approve the permanency plan and to find that reasonable efforts to achieve the goal of the existing plan have been made upon a fair preponderance of the evidence. The commissioner of the department of children and families shall have the burden of proving that the proposed permanency plan is in the best interests of the child or youth and that it has made reasonable efforts to achieve the goal of the existing plan.
Practice Book § 35a-14(d). The petitioner has met its burden of proof. See § 46b-129(k)(1)(A). As discussed herein, the proposed permanency plan is found to be in the child’s best interest and approved. The department is further found to have made reasonable efforts to achieve that plan. The motion for review and approval of the proposed plan is thus granted. The clerk shall establish dates for the department to file the next permanency plans and for hearing on those plans and notify the parties thereof.
V
ORDERS
The court having considered all the statutory criteria and having found by clear and convincing evidence that grounds exist for the termination of the respondents’ parental rights to these two children and having further determined and found by clear and convincing evidence, upon all of the facts and circumstances presented, that it is in the best interest of both children to terminate the parental rights of the respondent mother and father it is therefore HEREBY ORDERED:
The parental rights of Ashley Blair S. and Joel M. to Scarlett S. and Blair Elizabeth S. are hereby terminated. The Commissioner of Children and Families is appointed statutory parent for all both pursuant to § 17a-112(m) so that they may be placed for adoption.
Pursuant to § 17a-112(o) and Practice Book § 35a-14(g), the statutory parent shall file a written report on the case plan, the permanency plan, and the status of the child with the clerk of the Superior Court for Juvenile Matters at New Britain on or before September 12, 2018, at 9:00 a.m. and every three months thereafter on implementation of the plan.
For mood regulation:
Goal: Increasing coping skills
Steps include: identifying what has and has not been helpful, increasing knowledge of how anxiety affects the mind and body, learning relaxation techniques, learning attention retraining techniques.
Goal: Increasing appropriate emotional identification, expression and processing: Steps include: Sharing both negative and positive feelings as they come, being open, honest and willing to working through them in and outside of sessions.
Goal: Learning to make healthy and appropriate choices to assist with ability to adjust Steps include Learning and utilization basic CBT skills.
Q: With respect to the mental health issues that you observed in this case, were those- the presence of those mental health issues caused you concern about her capacity to have enough insight to protect her children?
A: They would cause me some great concern with the hypomanic mood instability and the anxiety which she would deny and refrain as angst.
Transcript of testimony, p. 29.
Q: Is it your opinion, Doctor, that until the misuse of drugs is resolved that the mental health issues, her capacity her mental health concerns cannot properly be addressed until the opioid issue is addressed?
A: Yes.Id., 28.
Q: Well, here’s my question and I’ll break it into smaller pieces. You were told by Dr. Miller and Ms. [S.] what medications had been prescribed and the quantities. Right?
A: Yes.
Q: If a person was taking the prescribed medications in a manner consistent with the prescriber’s directions for usage and not using other drugs or substances, would you necessarily have a question about parenting competency?
A: Your Honor, let me rephrase your question, please.
Q: This hypothetical and not with reference to the mother.
A: Okay. So if- but let me still rephrase so that I make sure that I’m understanding. If an individual is prescribed medication by her physician and she takes the medication as prescribed by her physician would I have concerns?
Q: That’s almost all of what I said, but in addition it was if she was prescribed what Ms. [S.] had been prescribed and she was taking it as directed and wasn’t using other substances as well, so just to amplify that that’s my question, would that necessarily raise parenting competency issues?
A: If taking it as specifically as directed would not necessarily. Transcript of testimony, November 13, 2017, pp. 33-34. Dr. Leveille then answered the following questions from the attorneys for the commissioner and mother:
Q: [D]id the impact of the different types the benzodiazepines, the opioid and I [From believe the Xanax, did the combination- or the Adderall, did the combination the of those, based on your understanding of this particular case cause you concern? assistant attorney general]
A: I was concerned about- yes, I was.
Q: So- but you evaluated not in isolation the use or the prescription of drugs but the prescription of drugs combined with what you understood Ms. [S.’s] psychological makeup to be.
A: Yes.
* * *
Q: [A[ssuming that those medications were taken by Ms. [S.] as prescribed, [From would that have caused a per se concern about her capacity to parent on those the drugs? mother’s attorney]
A: No, it would not.Id., 34-35.
In addition, Fortin did not testify and, in contrast to Dr. Leveille, thereby subject her opinions and conclusions to "the crucible of cross examination," Crawford v. Washington, 541 U.S. 36, 61, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which has been described by United States Supreme Court as the "greatest legal engine ever invented for the discovery of truth," California v. Green, 399 U.S. 149, 157-58, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), citing 5 Wigmore on Evidence § 1367, and by our own Supreme Court as "the chief engine of truth-seeking." State v. Rizzo, 266 Conn. 171, 240, 833 A.2d 363 (2003). Thus, the court has no idea whether the various statements and opinions provided by Ms. Fortin in her letters and emails reflect knowledge and assessment of these other events and statements suggesting ongoing mental health issues on the mother’s part.
It is, of course, true that the department’s proof in the adjudicatory stage is measured, generally, as of the adjudicatory date. In petitions pleading failure to rehabilitate under § 17a,112(j)(3)(B)(I), however, one of the component elements is whether the "degree of personal rehabilitation ... 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 ..." (Emphasis added.) Our courts have held that "[i]n 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 ." (Emphasis added.) In re Stanley D., 61 Conn.App. 224, 230, 763 A.2d 83 (2000). See also In re Jennifer W., 75 Conn.App. 485, 494-95, 816 A.2d 697 (2003) (same). Thus it is entirely appropriate to consider Ms. S.’s refusal to submit to the department’s request in February 2018, that she submit to hair test and random drug screening. In addition, however, Ms. S. refused to submit to random drug screening requested by DCF on several occasions between October 2016 and April 19, 2017, before the adjudicatory date for the petition concerning Scarlett, and July 18, 2017, the adjudicatory date for the petition concerning Blair.
Q: Prior to being evaluated by Madeline Leveile what was your understanding of why DCF had your child?
A: Um, because they thought that I was a heroin addict.
FTR, May 4, 2018, 3:11:32 p.m. - 3:11:51 p.m.
Q: Did there come a point in time when DCF stopped expressing that this was about a heroin addiction?
A: Yes.
Q: To the best of your recollection, when did that happen?
A: Um, I believe it was just a few months after doing the relapse prevention, after finishing that and doing urines with RSVP.
* * *
Q: At the point in time when DCF stopped expressing to you that this was about heroin, did they express to you any other concerns about substance abuse?
A: Yes.
Q: What did they express to you about substance use at that time?
A: Um, that the medications I was currently being prescribed, um, were highly addictive and they were suggesting that I probably misused them or abused them.
Q: Had they referenced your prescription drug use during the time that you were in the relapse prevention group?
A: No.
Q: Had they mentioned it during your treatment at the IOP?
A: No.
Q: At the time when they first referenced a concern that you were misusing your prescription drugs, was that before or after the evaluation of Madeline Leveille?
A: After.
FTR, May 4, 2018, 3:55:14 p.m. - 3:57:55 p.m.
Q: Who else [besides Costello] has supervised her with the children?
A: Nancy Andres, who is a case aid, Steve Delbuono, who is a case aid. Those are probably the only two I’m recalling that work for DCF and then a couple workers for Community Residences which is a credential provider of ours.
* * *
Q: Had Nancy Andres ever made a report to you or to anyone else from the department that the mother has appeared to be under the influences of substances?
A: Yes. That she questioned her stability or her state on a few occasions.
Q: Could you please provide more details about what was said to you by Nancy Andres about the mother’s state or condition during visits with her children?
A: I think the phrase she used was out of it.
Q: How many times to your recollection was that conversation had with you?
A: Conversation or how many times did it occur?
Q: How many times did it occur based on your understanding?
A: I would say very few, two, three maybe.
Q: And when was the most recent time that Nancy expressed any concerns to you about the mother’s appearance at a visit?
A: Probably a year ago.
* * *
Q: To the best of your knowledge did Steve ever raise any concerns that [Ms. S.] was under influence or impaired in any manner at a visit?
A: According to the case record, yes.
Q: Was that at the same time or a different time than Nancy’s concerns?
A: It was a different time.
Q: And that would have been prior to your involvement so prior to September of 2016?
A: Correct.
Transcript of testimony, January 6, 2018, pp. 104-05.
create and maintain safe, stable, and nurturing home environment free from substance/alcohol abuse,
learn triggers for substance abuse/alcohol use and alternative coping mechanism,
understand impact of substance/alcohol abuse on children,
address trauma history and understand impact on present functioning,
learn and demonstrate age appropriate parenting skills in the area of supervision, discipline, and developmental expectations, and
address mental health needs in individual counseling in order to maintain emotional stability and be a stable resource for the child.
See petitioner’s exhibits 4 and 4A.