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In re Stephen M. Day Care, LLC

Connecticut Superior Court Judicial District of Windham at Willimantic
Dec 31, 2008
2008 Ct. Sup. 20604 (Conn. Super. Ct. 2008)

Opinion

Nos. W10-CP02-014057-A, W10-CP02-014058-A, W10-CP03-014314-A

December 31, 2008


MEMORANDUM OF DECISION


Preamble

This is the re-trial of an action to terminate the parental rights of Jeanise and John M. of their three children Stephen, born November 26, 1997, Tabitha, born June 3, 2002, and Stephenee, born June 25, 2003. The procedural history of the case represents a failure of the Connecticut child protection system.1

The case began in August 2002, on a complaint by four-year-old Stephen that he had been sexually abused. The child was removed in a timely fashion from the parents. The father was believed to be the abuser and the mother would not accept the possibility of the abuse by the father. In 2003, another child, Stephenee was born and she was similarly removed. The cases were consolidated for trial. A contested neglect trial was conducted in July 2004, wherein the court, Trombley, J., in a well considered opinion, found that the child, Stephen, had been sexually abused by his father. On September 20, 2004, DCF filed the instant petition.

It was not until February 7, 2006, before a trial was conducted at the Child Protection Session in Middletown, CT. That trial occurred on February 7, 8, 9, March 22, 23, 23, April 7, and April 17, 2006. A decision was rendered five months later on September 13, 2006 dismissing the petitions (Crawford, J.). The petitioner promptly appealed. While awaiting the Appellate Court decision, the mother consented to the termination of her parental rights. The court after canvass, found the consent to be knowing and voluntary, entered with the assistance of competent counsel. The court terminated her parental rights upon a finding that it was in the best interests of the children. (Foley, Sr. J.) The Appellate Court thoroughly reversed the trial court's decision to dismiss the petitions on August 12, 2008, remanding the case for a new trial.

The re-trial on the petition for termination of parental rights of the father occurred six years and five months after the removal of the children in August 2002. The re-trial took three consecutive days commencing on December 16, 2008, in Willimantic.

The Neglect Trial (July 9, 2004) 2

The following facts, were found by the court, Trombley, J., after the trial on the neglect petitions, 3 and appear as written in the Appellate Court decision:

Interview guidelines require that an interviewer remain "open, neutral and objective." American Prosecutors Research Institute, National Center for Prosecution of Child Abuse, Investigation and Prosecution of Child Abuse at 7 (1987).

"In July 1991, the father agreed to the termination of his parental rights in a daughter, T., who is not a subject of this appeal. The father has a criminal record. In May 1994, he received a suspended sentence for threatening and harassment. In 1995, he was arrested and charged with multiple counts of sexual assault in the third degree and risk of injury to a child or acts he perpetrated on T. On February 21, 1996, he pleaded guilty, pursuant to the Alford doctrine, to two counts of risk of injury to a child. He received a suspended sentence and a term of probation, but he failed to cooperate with the office of adult probation (adult probation). According to his probation officer, the father was arrogant and resisted treatment at the Northeast Mental Health Sexual Offender Program and eventually was discharged from that program. He refused to discuss his relationships with significant others. Adult probation referred the respondents to the department of children and families (department) prior to the birth of their son. The department investigated and urged the mother to participate in counseling services for nonoffending parents of sexual abuse victims in order to protect the son, who was born in late 1997. The respondents signed a service agreement from the department, requiring twenty-four-hour a day adult supervision for their son. The mother was required to protect the boy from harm and to cooperate with the department. The father was to have no unsupervised contact with his son pursuant to the court-ordered conditions of probation. The father violated a no contact order regarding T. In 1998, he was found to be in violation of his probation and sentenced to two years in prison. On July 17, 2002, the father was convicted of breach of the peace in the second degree for acts perpetrated against the mother. On August 5, 2002, the father reported to the state police that his son had disclosed to him that the son had been sexually assaulted by a neighbor, "Uncle Ray." Using the language of a child, the son later told the investigating state trooper, Steven Corradi,4 of sexual acts perpetrated on him by his father. The son also told Corradi that he had lied about Uncle Ray because he feared that his father would go to jail. Corradi referred the matter to the department. Orders of temporary custody were filed with respect to the son and the older daughter, who was two months old at the time. The orders of temporary custody were sustained by agreement. The son was evaluated by a sexual abuse expert, Rebecca Bowen, in December 2002. Bowen concluded within a reasonable degree of clinical probability that the son had been sexually abused and that the father was the abuser, Bowen recommended that the son have no contact with the father and that the mother receive therapy. On the basis of Bowen's advice, the department stopped visits between the father and son. The father was evaluated by two sexual offender specialists, who round that he was at medium to high risk to reoffend. They recommended that the father not have unsupervised contact with the children. On August 22, 2002, the petitioner filed neglect petitions for the respondents' son and older daughter. The petitioner alleged that the respondents' son "is being denied proper care and attention, physically, educationally, emotionally or morally, or, . . . is being permitted to live under conditions, circumstances or associations injurious to the well-being of the child . . ." General Statutes § 46b-120(9)(B) and (C). The petitioner also alleged that the son was abused in that he "is in a condition that is the result of maltreatment such as . . . sexual molestation or exploitation . . ." General Statutes § 46b-120(4)(C). The petitioner alleged that the older daughter "is being denied proper care and attention, physically, educationally, emotionally or morally, or . . . is being permitted to live under conditions, circumstances or associations injurious to the well-being of the child . . ." General Statutes § 46b-120(9)(B) and (C). The respondents' younger daughter was born in June 2003, and agents of the department filed an order of temporary custody when she was two days old. The order of temporary custody was sustained. On June 30, 2003, the petitioner filed a neglect petition for the respondents' younger daughter on the same grounds as those alleged as to her sister. The neglect petitions were tried before Judge Trombley in April 2004. In its memorandum of decision, the court identified the core question as whether the son was sexually abused by the father and whether he was an abused child within the meaning of § 46b-120(4)(C). As to the older daughter, the court stated that the issue was whether she, as a child residing in the same household, was a neglected child as defined by § 46b-120(9). As to the younger daughter, the question was whether the petitioner was justified in removing her from the respondents' care under the doctrine of predictive neglect. Judge Trombley found, with respect to the neglect petitions, that the petitioner had proven by a fair preponderance of the evidence that the son was an abused child within the meaning of § 46-120(4)(C) in that he had been sexually molested by the father. The court based its finding on the father's conviction related to having sexually assaulted T., his lack of cooperation with adult probation, his violation of probation and the testimony of experts who opined that the father had abused the son. The court also found that the son was permitted to live under conditions, circumstances and associations injurious to his well-being. As a consequence of the sexual abuse he had sustained, the son was being denied proper care and attention, emotionally and morally. As to the respondents' daughters, the court found that the petitioner had proven by a fair preponderance of the evidence that there was a substantial risk that harm would be perpetrated on them. The court found, moreover, that the daughters had been denied proper care and attention, emotionally and morally, and that they were or would have been living under conditions, associations and circumstances injurious to their well-being. In light of the father's sexual abuse of the son, the risk to which the daughters would have been exposed, and the mother's continuing refusal to accept that the father's abuse was possible, if not substantially probable, the court committed all three children to the custody of the petitioner until further court order. The court found by clear and convincing evidence that it was no longer appropriate for the department to make efforts to reunify the father with the children." In Re Stephen M. et al., 109 Conn.App. 644, 647-53 (2008).

The respondent mother is not T.'s mother.

The application for an arrest warrant for the father's arrest included the following factual allegations. T. disclosed two specific incidents of sexual assault. In November 1991, when T. was five years old, the father threw her onto a bed, pulled down her pants, covered her head with a pillow, lay on top of her and put his private parts next to hers. The second incident occurred in September 1994, when T. was eight years old. The father placed a cushion from a couch over her face, lay on top of her with his pants down. T. tried to force him off by kicking him. T. then reported the incidents to her mother. When T.'s mother confronted the father with the allegations, the father responded: "If I did, I did; if I didn'T., I didn'T. But if you tell the police, I'll blow you away."

See North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

In the arrest warrant, the probation officer alleged that the father was "totally unwilling to discuss any issues or circumstances regarding his new family [mother and son] situation or any issues pertaining to his personal life." The probation officer expressed concern that the father was living in the same home as his son.

In his investigation report, Corradi reported the following on the basis of his interview with the son on August 19, 2002. "[The son] told this trooper that he lied last week because he was scared and didn't want his daddy to go back to jail. [The son] went on to state that it was not his Uncle Ray . . . that had been touching his pee pee and butt.' I like Uncle Ray,' he replied. [The son] stated that it was dad [the respondent] who was trying to touch his pee pee. The son said that dad tries to touch his pee pee at night when he is in bed sleeping. The son then put his hand down the front of his shorts and said that dad shakes it and when he does that he has his pee pee out and it is small like his then it gets real, real big and he tries to put it in his butt . . . [The son] then said that dad stops touching his pee pee and then white stuff comes out of daddy's pee pee. [The on] continually pointed to his lower back/butt area and his penis and stated that `Daddy tries to touch my pee pee and butt.'"

In her report dated February 7, 2003, Bowen stated that when the son was shown an anatomically correct drawing of an adult, white male, frontal view, he said, "Daddy. That's my Daddy." The son also stated, "I have seen Daddy's pee-pee. It's bigger. Mine is small." When the son was shown a posterior view of an adult male, he stated, "That's daddy's butt. I have seen Daddy's butt." Bowen questioned the son about the boy's conversation with Corradi. The son said, "I remember telling the policeman buddy. He's my buddy." The son told Corradi "about [d]addy and his pee pee." The son refused to answer other questions about what he told Corradi. When asked whether Uncle Ray had ever touched his pee pee or if he had seen Uncle Ray's pee pee, the son denied that Uncle Ray had ever touched his penis or shown the son his own penis. The son liked Uncle Ray and said "he wouldn'T. do that." When Bowen asked the son if the father had ever touched his pee pee, the son replied: "Daddy say not to talk about pee pee or he will go to jail . . . Daddy went to jail, then ran out of jail very fast . . . Daddy took me and mommy to the jail . . . In the car, he showed us."

"Our statutes clearly and explicitly recognize the state's authority to act before harm occurs to protect children whose health and welfare may be adversely affected and not just children whose welfare has been affected." In re Michael D., 58 Conn.App. 119, 124, 752 A.2d 1135, cert. denied, 254 Conn. 911,759 A.2d 505 (2000); see also In re T.K., supra, 105 Conn.App. 513.

Judge Trombley found that the son's "disclosures of the father's sexual molestation, which were made to the trooper, were reliable and trustworthy under all the circumstances, in particular, the child's graphic statement as to the result observed by this four-year-old of his father's erection!"

With regard to the younger daughter, whom the petitioner took into custody from the hospital when she was only several days old, the court predicated its finding on the doctrine of predictive neglect. See In re Michael D., 58 Conn.App. 119, 124, 752 A.2d 1135, cert. denied, 254 Conn. 911, 759 A.2d 505 (2000).

The Decision on the termination petition: (2006).

The judge in the termination proceedings concluded exactly the opposite of the finding of Judge Trombley, namely, that, in her opinion, "the child never stated the father had sexually abused him." (p. 13.) Judge Trombley had concluded: "[T.]his court found that Stephen's disclosures of father's sexual molestation which were made to the trooper were reliable and trustworthy under all the circumstances, in particular, the child's graphic statement as to the result observed by this four-year-old of his father's erection! (Memorandum of Decision, Trombley, J., 7/26/04 p. 12.)

The judge in the first termination proceeding thereafter, dismissed the petitions as to the mother and the father, disapproved the permanency plans, and directed DCF to file permanency plans that called for the reunification of the father and mother with the children.5

The Appeal:

The department appealed immediately. On appeal the department claimed that when adjudicating the petitions for termination of parental rights, the trial court, improperly disregarded the prior factual finding that the children were neglected, which was based on the father's sexual abuse of the respondents' son. In light of the fact that a party is barred by the doctrine of collateral estoppel from relitigating a previous finding of neglect during a subsequent termination trial, the appellate Court agreed that the termination of parental rights trial court improperly disregarded the earlier neglect finding.

The Appellate Court found termination court had erred in four significant ways:

1.) The court improperly concluded that the petitioner had failed to move by clear and convincing evidence that the respondents had failed to achieve a sufficient degree of personal rehabilitation because the court reconsidered issues that had been decided during the trial on the neglect petitions.

2.) That the court failed to give preclusive effect to the finding made on the basis of the neglect proceeding that further efforts to reunify the father with the son were inappropriate.

3.) That the court improperly determined that the department failed to make reasonable efforts to reunify the mother with her children.

4.) That her finding as to the parent-child relationship between the son and the respondents was clearly erroneous. Accordingly, the case was remanded for new trial on August 8, 2008.

The Second Termination Trial (December 16, 17 and 18, 2008)

This court heard from nine witnesses including Dr. Nancy Randall (the psychologist); the foster father for Stephen; the foster mother of Stephanee and Tabitha; three social workers; Dr. Edward Rabe (the psychiatrist); the father's clinical social worker who is his personal therapist; Eliza L. Borecka, of the Sterling Center, a licensed clinical social worker with twenty years of experience; and state trooper Robert S. Corradi. Numerous exhibits were received as full exhibits from the petitioner and the respondent. The court has considered the evidence and makes the following findings by clear and convincing evidence.

Parental Failure of the father to Rehabilitate- § 17a-112(j)(3)(B)(I)

The petitioner alleges that John's parental rights should be terminated because he has failed to achieve rehabilitation within the meaning of C.G.S. § 17a-112(j)(3)(B). As the children were previously found to be neglected on July 9, 2004, the critical issue for this court is whether the father has achieved or will achieve rehabilitation sufficient to encourage the belief that within a reasonable time considering the age and the needs of the children such parent could assume a responsible position in the life of this child. The court finds this issue in favor of the petitioner.

From the very beginning of this case the central issue has been the sexual molestation of Stephen and the danger an abusive sexual perpetrator poses to the other siblings in the home. This issue has been clear to John M., from the very beginning of the case. He has had a history of sexually inappropriate behavior which has led to his extended incarceration in the past.

When the children were first removed Judge Mack issued specific steps on August 29, 2002. Those steps were later "re-affirmed" on August 29, 2002 (Lopez, J. Exhibit F.) John signed the Specific Steps document on August 29, 2002. Above his signature appears the following statement:

As the above-named respondent, I hereby agree to cooperate with the above conditions approved and ordered by the court and recognize that non-compliance with these steps (sic) result in modification of the existing order or disposition. I acknowledge that failure to achieve these specific steps will increase the chance that a petition may be filed to terminate my parental rights permanently so that my child may be placed in adoption. I understand that I should contact my lawyer and/or DCF worker if I need help in reaching any of these steps.

Subsequently Judge Trombley ordered Specific Steps as to the mother after the neglect trial, but the court found that any effort to reunify these three children with the father was not appropriate.

John, the respondent father, was very modestly compliant with a few requirements. He did complete a parenting course at the United Services Sonia center in January 2003. He had maintained contact with the two girls for the first few years attending about one-half of the 140 visits, more or less. He has not visited with Stephen since February 2003. But the area of greatest concern, to DCF and to the courts, sexual offender treatment, was unequivocally and continuously rejected by John.

In the initial steps for the father (Exhibit F) it is stated: "Father needs to participate in a sexual offender evaluation and any counseling recommended as a result of that evaluation." While John did attend a sexual offender evaluation, he declined to participate in sexual offender treatment. He has also declined subsequent offers by DCF for a more recent evaluation and treatment. He has reported to the social workers and the therapists that he has no intention of ever attending sexual offender programs.

DCF further identified an issue of alcohol abuse and required John to participate in a substance abuse evaluation and treatment program. John has completely refused to participate in the Northeast Clinical Specialist referral for substance abuse evaluation and denies any substance abuse issues. This is contrary to the claims of his wife that she was going to leave him because of his daily drinking. A psychological evaluation by Dr. Randall confirmed "substance abuse problems do appear to be an ongoing issue for [John]." Petitioner's Exhibits V. and C. p. 16.)

He also refuses to sign releases for necessary information to gain entry into supervised visitation programs at Kidsafe and the Madonna Place, thus rendering him ineligible for supervised visitation and parenting education services. He does not attend Administrative Case Reviews at DCF. He is often hostile to the social workers.

In April 2005, prior to the first termination of parental rights trial, Dr. Nancy Randall, a clinical psychologist, known to this court as a frequent psychological evaluator, conducted an evaluation of the children, the foster parents and the respondent/parents. The evaluation of John revealed a number of issues that have seriously impacted on his disinclination to seek help and his avoidance of treatment.

He fears that others are trying to hurt him or take advantage of him, and so he is overprotective of himself, limiting his interactions with others. Given the situation with his family, some of his apprehension about interactions with professionals is understandable. However, the personality testing suggests that this is a more pervasive issue with him than simply a response to the situation with DCF and the courts. [John] has a lot of anger. (p. 15.)

A reunification plan is not recommended. Court findings have indicated that [John] does appear to have been sexually abusive in the past and he has not received adequate treatment for this issue. The parents are not open to making changes themselves, but rather blame everyone else for the problems of their family. If the parents were willing to participate fully with treatment services, it would be appropriate for them to participate in services with Northeast Clinical Specialists to work on the sexual abuse issues. (p. 18 para. 10.)

During her testimony on December 16, 2008, Dr. Randall indicated, in summary regarding rehabilitative prospects, that John is not motivated for treatment of substance abuse or sexual offender treatment. He has relational issues with other adults, he has issues of impulsivity and anger management. She concluded that in the six years since the removal of he children he has not rehabilitated and is not likely to do so.

Sexual Abuse of Stephen:

John, through counsel, makes much of the fact that he is unwilling to attend sexual offender therapy because he would have to admit his involvement. He denies his involvement. His complete statement of denial given to the state police on August 19, 2002, was "I did not touch my son inappropriately in any way whatever."6 Through counsel, John makes much of his claim that it was he who first brought the complaint to the attention of the police and that Stephen told four people that another person, Ray, was the assailant.

The case first came to the attention of the State Police when John called the police to report his son had been sexually abused by a downstairs neighbor, Ray. Trooper Corradi went to the apartment of John and his wife, Jeanise. Later they were asked to go to the police barracks to make a statement. The statement of John, taken at 2110 hours, (9:10 p.m.) August 5, 2002, at the Danielson Barracks is itself very problematic. The statement begins as follows;

As of late my son Steven [sic] (DOB 11-24-97) has been acting strange around the house. Meaning that he has been sitting with his feet in the air, wide open as to expose himself. It looks like he is about to have a sexual encounter. Today I asked Steven if Ray has ever touched him and Steven replied that he touched him in the chest and back.

This statement is notably suspicious in the following ways: 1) the question put to the child is explicitly leading, i.e. it is suggestive of a person, Ray, and it is suggestive of the type of conduct, touching, 2) it is not spontaneous, 3) there is no free narrative by the child and 4), most importantly, the child admits to only non-offensive touching, i.e. the chest and back.

Thereafter, John places the child in a series of awkward and difficult situations with his ex-girlfriend and the child's godmother, Bonnie, who is also the child's babysitter; John's wife, Jeanise; and John's sister, Ann, in each case prompting Stephen to tell his mother, his aunt and his god-mother how Ray has touched him. The responses of John and his relatives must be evaluated in light of the general credibility of each of these people together with the contrived manner of acquiring the supporting statements.7 It may be all theater.

Most parents are not skilled in conducting forensic interviews of children. In truth, an effective and comprehensive sexual abuse interview of a child is beyond the competence of regularly trained police officers and, in all likelihood, beyond the competence of the normally trained DCF social worker. An appropriate interviewer should have formal education at the masters level in social work with advanced training and experience in the very specific field of forensic interviewing of children.

Martha Finnegan and Catherine S. Connell, both with Masters in Social Work licensed and accredited, are Child and Adolescent Interview specialists with the Federal Bureau of Investigation. They are exciting and dynamic instructors of child protection personnel and FBI special agents. Both endorse the concept of multi-disciplinary teams for the interview of children who have been sexually abused. These teams consist of law enforcement, child protective service workers, an experienced and qualified forensic interviewer, a representative of the prosecution, a guardian ad litem and any other necessary personnel.

Since this case began in August 2002, Eastern Connecticut has embraced a multidisciplinary approach to sexual abuse allegations in the form of Wendy's Place, at the Day Kimball Hospital, Danielson Health Center. In this partnership of professionals, Wendy's Place is charged with the task of reducing the trauma to children which is occasioned by multiple interviews, often with inexperienced persons, resulting in continuing victimization from the investigative process itself. The team consists of a representative from the investigating law enforcement agency, a DCF social worker, a representative from the State's Attorneys office, an advocate to provide support for the child and family, and a specially trained interviewer. The interview is to be videotaped to avoid multiple interviews and to establish the validity of the process and protocols. The team will suggest medical and mental health services as necessary for the victim and family.

Many of the horrendous problems in the present case would have been obviated by a professional interview recorded on video tape. But the multi-disciplinary protocol was not in place in Eastern Connecticut in 2002.

Many of the developments in forensic interviewing resulted from the case of State v. Michaels, 136 N.J. 299, 642 A.2d 1372 (1994). In this case a nursery school teacher was convicted of bizarre acts of sexual abuse against many of the children who had been entrusted to her care. The Supreme Court of New Jersey was required to determine whether the statements and testimony of the child-sex-abuse victims must be excluded because improper questioning by State investigators had irremediably compromised the reliability of that testimonial evidence.
"The question of whether the interviews of the child victims of alleged sexual-abuse were unduly suggestive and coercive requires a highly nuanced inquiry into the totality of circumstances surrounding those interviews. Like confessions and identification, the inculpatory capacity of statements indicating the occurrence of sexual abuse and the anticipated testimony about those occurrences requires that special care be taken to ensure their reliability."

Accordingly, in late August 2002, state trooper Corradi, acting in accordance with then existing approved Connecticut State Police policy, asked the mother, father and child to come to the barracks for further interviews. With the permission of the parents, Corradi took the child alone into an interrogation room.

This trooper then interviewed Steven (sic) at Troop "D." Steven told this Trooper that he lied last week because he was scared and didn'T. want his daddy to go back to jail. Steven went on the (sic) state that it was not his Uncle Ray (name omitted) that had been touching his pee pee and butt, "I like Uncle Ray," he replied. Steven stated that it was dad (John M.) who was trying to touch his pee pee. Steven said that dad tries to touch his pee pee at night when he is in bed sleeping. Steven then put his hand down the front of his shorts and said that dad shakes it and when he does that he has his pee pee out and it is small like his then it gets real, real big and he tries to put it in his butt (own). Steven then said that dad stops touching his pee pee and then white stuff comes out of daddy's pee pee. Steven continually pointed to his lower back/butt area and his penis and stated that "Daddy tries to touch my pee pee and butt." Steven was asked if dad ever makes him touch his pee pee or puts his pee pee in or on him and Steven said No." (Police Report-Respondent's Exhibit 8.)

Stephen's name is always spelled incorrectly throughout the police report.

The United States Supreme Court in Idaho v. Wright, 497 U.S. 805, 110 S.Ct 3139, 111 L.Ed.2d 638 (1990), noted with approval the conclusion of the Idaho Supreme Court that the failure to video tape interviews with alleged child victims, the use of blatantly leading questions, and the presence of an interviewer with a preconceived idea of what the child should be disclosing, in addition to children's susceptibility to suggestive questioning, all indicate the potential for the elicitation of unreliable information. Id., at 812-13, 110 S.Ct. at 3145, 111 L.Ed.2d at 650; see also State v. Hill, 121 N.J. 150, 168, 578 A.2d 370 (1990) (noting potentially coercive effect of having authoritarian figure participate in investigatory interview); State v. Bethune, supra, 121 N.J. at 145, 578 A.2d 364 (expressing concern over leading questions used to elicit complaint of sexual assault of minor); State v. R.M., 245 N.J.Super. 504 516, 586 A.2d 290 (App.Div. 1991) (noting potential for a partisan questioner to create a coercive environment); State v. M.Z., 241 N.J.Super. 444, 451 575 A.2d 82 (Law Div. 1990) (ruling child's out-of-court statement inadmissible under Evid. R. 803(c)(27) because investigator could not distinguish between what child said and what was suggested to her). State v. Michaels, 136 N.J. 299, 642 A.2d. 1372 (1994).

There is nothing in the report itself, the testimony of Trooper Corradi, the subsequent developments in the case, the evaluations by sexual abuse evaluators or other testimonial or documentary evidence which suggests in any way that Trooper Corradi fabricated the statements of the child. Indeed, the subsequent evaluators testimony regarding John as a possible predator, support the report of Trooper Corradi. His interview appears to have been open, neutral and objective.fn4 This conclusion would have been much easier to reach if the evaluation had been videotaped.

Subsequent Developments:

There are further developments since this case was tried in Middletown which assist in reaching factual conclusions regarding John's culpability. In late 2006, and early 2007, Stephen began to exhibit very sexualized, non-normative behaviors. Stephen was in a foster home with his sisters. He began sexually acting out in the pool, "humping" his siblings, publicly masturbating at home and in school, uncontrolled urinating in his pants (encopresis), perpetrating sexually inappropriate behavior on others, and he was petrified about entering any public men's room. He always wanted to go into the women's room and did not want the door closed. He was often untruthful to his foster parents. These were serious, maladaptive behaviors which were harmful to Stephen and to others. The children in the foster home, including his sisters were afraid to be alone with him. The foster parents were helpless to control the situation. They wanted Stephen removed from the home.

In August 2007, Stephen had the very good fortune to begin therapy with Eliza L. Borecka, MA., MSW, L.C.S.W. Ms. Borecka is a therapist with the Specialized Treatment Services of the Sterling Center in Shelton and Cromwell, Ct. She is a clinical member and president-elect of the Connecticut Association for the Treatment of Sexual Offenders. She specializes in the evaluation and treatment of persons exhibiting sexually maladaptive behaviors. When Stephen first appeared for consultation he was in extremely high anxiety, with symptoms of severe trauma. He had been diagnosed with ADHD and PTSD. He had no bladder control. He was suspicious; walking around and examining things to ensure his safety. Ms. Broecka placed him in the highly reactive range of therapeutic need.

Ms. Borecka said that she does not assume, even with background information, that a child was necessarily sexually abused. Her goal is to make therapeutic space for the child so there was safety and comfort. Stephen was in a very bad place in his life. He had low self-esteem, he was doing bad things to others and he could not stop. She explained in detail her course of treatment and Stephen's progress.

By the end of therapy in April 2008, through a process of making Stephen comfortable and safe, Stephen was able to verbalize his history of sexual experience, control his physical behaviors, cease his public masturbation, and reduce to non-existence his maladaptive behaviors. Ms. Borecka testified that Stephen's behaviors were able to improve after his release of his carefully guarded, bad secrets. Ms. Borecka said this often happens when children are able to express themselves after containing information for years that they were not able to share. Stephen was now, spontaneously able to talk about his father touching him in the shower.

The intimate details of the therapy and the remarkable protocol which enabled Stephen to speak without fear are too long to recite here, but the court has heard the testimony and places great weight upon the testimony and conclusions of Ms. Borecka. She reported to DCF that Stephen was, in her clinical judgment, sexually abused by his father.

The court is satisfied that the clear and convincing evidence supports a finding that John M., sexually abused his son Stephen. In terms of rehabilitation, John has declined all therapy directed at sexual offender treatment and substance abuse treatment. Ms. Borecka testified that a person assessed as a medium to high risk sex offender would not self-remediate over time absent long-term treatment.

The Adoption and Safe Families Act, 42 U.S.C. § 620 et seq. requires in all placement decisions that the safety of the child be a paramount consideration. Here the court has concluded that one of the three children, Stephen, has been sexually molested by the father. The father has a prior conviction for molesting another female child of an earlier relationship. The father vigorously rejects any form of treatment. Accordingly, the court concludes that no children can safely be placed in his care.

The petitioner alleges that John's parental rights should be terminated because he has failed to achieve rehabilitation within the meaning of C.G.S. 17a-112(j)(3)(B). As the children were previously found to be neglected, the critical issue for this court is whether the father has achieved or will achieve rehabilitation sufficient to encourage the belief that within a reasonable time considering the age and the needs of the children such parent could assume a responsible position in the lives of the children. This court finds that John has not rehabilitated and that the children have been out of his care and in placement for six and a half years. The petitioner has satisfied her burden of proof on this ground.

DISPOSITION

As to the dispositional phase of this hearing on the petition for termination of parental rights, the court has considered the evidence and testimony related to circumstances and events up to and including the date upon which the evidence in this matter was completed. During the dispositional phase, the trial court must determine whether termination is in the best interests of the children. In re Eden F., 250 Conn. 674, 689 (1999).

The court makes the following seven written findings:

These findings are not required as to the consenting parent, Jeanise P-M.

(1) As to the timeliness, nature and extent of services offered, provided and made available to the parents and the children by an agency to facilitate the reunion of the children with respondents, the court finds that DCF offered many services to address substance abuse, mental health, anger management and sexual offender issues. Father was also offered parenting education, visitation and transportation. His participation has been previously addressed.

(2) As to whether DCF has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended, the court finds that DCF made such efforts by offering appropriate treatment and services.

(3) As to the extent to which all parties have fulfilled their obligations under the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, the court finds John did not engage in appropriate services. Given his extensive criminal history and unwillingness to seek needed therapy, this court finds hat John failed to fulfill his parental obligation to engage services. DCF has fulfilled its obligations to offer assistance for his self-improvement.

(4) As to the feelings and emotional ties of the children with respect to the children'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, the court finds that the child does not have a strong parental emotional bond with the biological father. The court has heard testimony from the foster father for Stephen. The foster father is a remarkable man committed to Stephen's care. He is himself a special education teacher familiar with the history and problematic behavior of Stephen and is devoted to Stephen's care.

The court heard testimony form the foster mother of Tabitha and Stephenee. She also is a caring and devoted foster parent who is bonded to the children and them to her. Tabitha has many special needs. She has a disorder known as sensory integration disorder. She may also have fetal alcohol spectrum issues. These and other problems require considerable time energy and sensitivity of the foster parents. She absolutely requires dedicated care, structure and stability which she presently receives in her foster home. Stephenee has speech delays but is, according to the foster mother, perfectly normal. These children have been with the present foster family virtually since birth. All the foster parents are committed to the children and would like to adopt them.

(5) As to the ages of the children, Stephen is now 11. He was born on November 24, 1997. Tabitha is now 6. She was born June 2, 2002 and removed from her biological parents two months later. Stephenee is now 5. She was removed from her parents at birth, June 25, 2003. The children's attorney recommends permanency which can only be achieved here through termination of the parent's rights.

Our Supreme Court has long recognized the deleterious effect of prolonged temporary care of abused and neglected children. In re Juvenile Appeal (84-CD), 189 Conn. 276, 292, 455 A.2d 1313 (1983). The Appellate Court has also noted, "[b]ecause of the psychological effects of prolonged termination proceedings on young children, time is of the essence . . ." In re Alexander V., 25 Conn.App. 741, 748, 596 A.2d 930 (1992), aff'd, 223 Conn. 557, 613 A.2d 780 (1994).

(6) As to the efforts the parents have made to adjust such parent's circumstances, conduct, or conditions to make it in the best interest of the children to return such children 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, the court finds that respondent mother has maintained contact with the children and DCF and has attended visitation and father has been confined and is therefore maintained regular and consistent contact with the children via DCF. The court further finds that the father is unable to assume a responsible parental role in the children's life. Giving the father additional time would not likely enable him to adjust his circumstances, conduct or conditions to make it in the best interest of the child to be reunited within a time-frame suitable for these children.

(7) As to the extent to which a parent has been prevented from maintaining a meaningful relationship with the children by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent, the court finds no unreasonable conduct by the child protection agency, foster parents or third parties. DCF took many steps to facilitate reunification, most notably providing visitation, parent education and offering therapy and treatment for offender and non-offender parents.

With respect to the best interests of the children contemplated by C.G.S. § 17a-112(j)(2), by clear and convincing evidence, and based upon all of the foregoing, the court finds that termination of the parental rights of John M. to the three children is in the best interest of the children. Permanency, consistency and stability are crucial for these children. The children are now in foster homes where they are very well cared for by foster parents who are fully committed to them. This male parent is not in a position to provide day-to-day care for the children at this time even after six years of foster care.

In finding that termination of the respondents' parental rights would be in the children's best interest, the court has examined multiple relevant factors including the children's interests in sustained growth, development, well-being, stability and continuity of their environment; their length of stay in foster care; the nature of their relationship with foster parents and biological parents; the degree of contact maintained with their biological parents; and their genetic bond to respondents. In re Alexander C., 60 Conn.App. 555, 559, 760 A.2d 532 (2000); In re Shyina B., 58 Conn.App. 159, 167, 752 A.2d 1139 (2000).

IV. ORDER

It is accordingly, ORDERED that the parental rights of John M. are hereby terminated as to the three children Stephen, Tabitha and Stephenee.

The parental rights of Jeanese M., have been previously terminated upon her consent.

The Commissioner of the Department of Children and Families is hereby appointed the statutory parent for the three children.

With regard to the permanency plans for the children, the court hereby approves all of the previously filed plans of termination of parental rights and adoption as to the children and finds that such plans are in the best interest of the children. The court also finds that DCF has made reasonable efforts to effectuate the permanency plans. Case reports shall be submitted within thirty days of this judgment, and such further reports shall be timely presented to the court as required by law.

The Clerk of the Probate Court with jurisdiction over any subsequent adoption of the child shall notify in writing the Deputy Chief Clerk of the Superior Court for Juvenile Matters at Willimantic, 81 Columbia Avenue, Willimantic, Ct. 06226 of the date when said adoption is finalized.

Judgment may enter accordingly.

Footnotes of the Appellate Court: In re Stephen M. et al., 109 Conn.App. 644 (2008).fn4 The trial of the neglect petitions was delayed because the respondents were being represented by the same attorney. Judge Trombley ordered the appointment of separate counsel for the respondent mother in the interest of justice and rule 1.7 of the Rules of Professional Conduct. The court concluded that dual representation of the mother and father was inappropriate in that it deprived the mother of the opportunity to pursue an alternate course of action, specifically, reunification with the children without the father's participation.

1 All of the procedural guidelines for expedited hearings as recommended by the Adoption and Safe Families Act 42 U.S.C. § 620 et seq. and Connecticut statutes have been violated. The aspirational guidelines call for permanency within 18 months of removal. The neglect trial was 2 years post removal. The first termination trial was decided 4 years post removal. The appeal took two years.

2 The stenographically produced transcript of the decision was released July 26, 2004.

3 The endnotes of the Appellate Court are as marked by that court (fn6 — fn13) and appear at the end of this decision. Footnotes of this court appear on the page where noted.

4 The state trooper's name is apparently Robert Steven Corradi. His reports are signed "R. Steven Corradi." He testified in Willimantic as trooper Robert Corradi.

5 Corrected Memorandum of Decision, Juliett L. Crawford, J., September 26, 2006.

6 This court is not relitigating the prior finding of Judge Trombley, but merely addressing the validity of his denial as it relates to rejecting sexual offender treatment.

7 The entire statement is on the fifth page of Respondent's Exhibit 8.

This conclusion is reached after attending a two day conference, Forensic Interviewing of Children, Adolescent and Adult, sponsored by the FBI New York Office Victim Assistance Program, the New York City Administration for Children's Services and the Office of the Chief Medical Examiner NYC, April 17, 18, 2008 in New York City.


Summaries of

In re Stephen M. Day Care, LLC

Connecticut Superior Court Judicial District of Windham at Willimantic
Dec 31, 2008
2008 Ct. Sup. 20604 (Conn. Super. Ct. 2008)
Case details for

In re Stephen M. Day Care, LLC

Case Details

Full title:IN RE STEPHEN M., IN RE TABITHA M., IN RE STEPHENEE

Court:Connecticut Superior Court Judicial District of Windham at Willimantic

Date published: Dec 31, 2008

Citations

2008 Ct. Sup. 20604 (Conn. Super. Ct. 2008)