Opinion
H12CP16016692A
08-21-2019
In re Tayany S.[*]
UNPUBLISHED OPINION
File Date: August 22, 2019
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Gilligan, Robert G., J.T.R.
MEMORANDUM OF DECISION
R. Gilligan, JTR
By termination of parental rights petition filed with the court on December 24, 2018, the Commissioner of the Department of Children and Families ("DCF") petitioned the court to terminate the parental rights of Destiny R. ("Mother") and Tayarix S. ("Father") as those rights pertain to the minor child, Tayany S., born September 20, 2013. Proper service of process on Mother and Father has been confirmed and notice of the trial was properly given in accordance with the applicable provisions of the Connecticut General Statutes and the Practice Book. Counsel was appointed for Mother, Father and the minor child. There is no known action pending in any other court concerning custody of the minor child nor any claim of Native American affiliation. The court finds that it has jurisdiction of this matter.
Procedural History
On October 24, 2016, DCF filed an ex parte motion for an order of temporary custody of Tayany and a neglect petition in her interest. The court issued the order of temporary custody on October 24, 2016 following a finding that Tayany was in immediate physical danger from her surroundings and continuation in the home was contrary to her welfare. The court vested temporary custody of Tayany in DCF and the order of temporary custody was sustained at a hearing on October 28, 2016. (Gilligan, J.) On January 12, 2017, Tayany was adjudicated neglected and committed to DCF. (Dannehy, J.) DCF’s permanency plan of termination of parental rights and adoption for Tayany was approved at a hearing on September 10, 2018. (Dannehy, J.) On December 24, 2018, DCF filed a petition with the court to terminate Mother and Father’s parental rights.
Legal Standard
A hearing on a termination of parental rights petition consists of two phases: adjudication and disposition. In the adjudicatory phase, the court must determine whether the proof provides clear and convincing evidence that at least one ground pleaded exists to terminate parental rights as of the date of the filing of the petition or last amendment. See In re Keyashia C., 120 Conn.App. 452, 455, cert. denied, 297 Conn. 909 (2010); In re Javon R., 85 Conn.App. 765, 769 (2004); In re Joshua Z., 26 Conn.App. 58, 63 cert. denied, 221 Conn. 901 (1991); Practice Book § § 32a-3(b), 35a-7.
If at least one pleaded ground to terminate is found, the court must then consider whether the facts, as of the last day of trial, establish, by clear and convincing evidence, that termination is in the child’s best interest. See In re Anthony H., 104 Conn.App. 744, 756 (2007). "In the dispositional phase ... the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent’s parental rights is not in the best interests of the child. In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in [§ 17a-112(k) ]." (Internal quotation marks omitted.) In re Luciano B., 129 Conn.App. 449, 479 (2011); In re Joseph L., 105 Conn.App. 515, 529, cert. denied, 287 Conn. 902 (2008).
Adjudicatory Grounds
DCF alleges the following adjudicatory grounds in the termination of parental rights petition as to Mother and Father: General Statute § 17a-112(j)(3)(B)(i), i.e., that the child has been found in a prior proceeding to have been neglected or uncared for and that Mother and Father have failed to achieve the degree of personal rehabilitation that would encourage the belief that within a reasonable time, considering the age and needs of the child, that parents or either of them could assume a responsible position in the life of the child.
Prior Neglect Finding
On January 12, 2017, Mother entered a written plea of nolo contendere to the neglect petition filed by DCF. The court defaulted Father for failure to appear and Tayany was adjudicated neglected. (Dannehy, J.) The requisite finding required under General Statute § 17a-112(j)(3)(B)(i) that the child has been adjudicated neglected in a prior proceeding has been established.
The Trial and Evidence Presented
A trial on the termination of parental rights petition was conducted on May 23, 2019. The court advised Mother and Father of their rights pursuant to In re Yasiel, 317 Conn. 773 (2015).
At the conclusion of evidence, the court ordered counsel to submit proposed findings of facts supported in the record. Counsel requested June 24, 2019 as the date for filing together with written arguments.
The court heard testimony from Jessica Thomas, DCF social worker supervisor, Kimberly K., pediatric nurse consultant to DCF, Katie Z., an LPN employed by All Pointe Homecare, Cynthia D., foster mother and Ana Tandoh, DCF social worker. DCF offered thirteen exhibits (Exhibits A, B, C, D, E, F, G, H, I, J, K, L and M) which were admitted as full exhibits without objection. Mother offered four exhibits (Exhibits 1, 2, 3 and 4) which were admitted as full exhibits without objection. No exhibits were offered by the attorneys for Father or the minor child.
The court was able to closely observe the appearance and demeanor of the witnesses and determine the validity, cohesion, and credibility of the testimony. The court has reviewed and considered the documentary evidence admitted as full exhibits. The court makes the factual findings set forth herein upon an independent assessment of all the evidence and such findings required to rule on the petition are found by clear and convincing evidence.
Respondent Mother
Mother was born in Hartford and is 22 years old. She has a DCF history in Massachusetts and Connecticut. She reports that she is dyslexic and received special education in school. She reports that she attended high school in Worcester MA but dropped out of school in the 11th grade as a result of Tayany’s birth and medical condition.
Mother reported that she received therapy services for depression from age 12 through age 16 as a result of multiple traumatic experiences. She reports that she was sexually abused by her step-brother’s father. Mother’s biological father committed suicide by hanging when she was 15 years old and her mother’s boyfriend committed suicide when she was 16. Mother reported a history of anxiety, depression and postpartum depression following the birth of her children.
Mother was 16 years old when Tayany was born. Mother has a child protection history with Massachusetts CPS as a parent dating back to April 2015 when she was 18 years old concerning medical neglect of Tayany.
Mother reported that she began to struggle with meeting Tayany’s medical needs when her second child, Tayarix was born when she was 17. (Exhibit F, p. 7.) Mother has two other children with Father, Tayarix and Tayaralynn, who were born November 15, 2014 and March 3, 2017 respectively and were in her custody at the time of trial.
Mother has no criminal or substance abuse history. She resides in Worcester, MA.
Respondent Father
Father was born in Puerto Rico and is 24 years old. Father resides in Worcester, Massachusetts. He is one of nine children all of whom reside in Massachusetts. Father reported that he was in foster care as a child. He attended high school in Massachusetts and was arrested in his senior year. Father was sentenced to prison when he was 17 and served 18 months from June 2013 to December 2014. At age 19, Father was arrested for distribution of illegal drugs and was incarcerated from August 2017 to August 2018. Father is not on parole or probation and social worker Tandoh acknowledged on cross examination that DCF is not aware of any new charges. (Exhibit K, p. 18.)
Despite efforts by DCF to locate Father, his whereabouts were unknown until DCF received a text message from him in April 2017 providing an address in Newark, New Jersey. DCF sent regular and certified mail to engage Father in Tayany’s case to no avail. Mother reported that Father visited Connecticut regularly to see Mother and Tayany’s siblings but did not contact DCF concerning Tayany’s case. DCF located Father in April or May of 2018 when it was learned that he was incarcerated in Massachusetts.
Father reports that he completed parenting and life skills programs and completed his GED while incarcerated. He provided DCF with certificates of completion which DCF has not verified.
Tayany
Tayany was born September 20, 2013 in Massachusetts and is five years old. She is a medically complex child with diagnoses of prematurity, gastroschisis, epilepsy, seizures, spastic cerebral palsy with hip dysplasia, arteriovenous shunt placement and legal blindness. She has global developmental delays and has required multiple hospitalizations and surgeries in Massachusetts and Connecticut. Tayany remained hospitalized for six months after birth at Boston Children’s Hospital. (Exhibits C and F.) She is wheel chair bound, requires total diapering and is followed medically by a pediatrician and medical personnel in the following specialties: surgery, neurosurgery, neurology, ophthalmology, gastroenterology, cardiology, pulmonology, orthopedics and physical therapy. (Exhibit G, p. 7.) In addition to a number of other medicines, she requires anti-seizure medicine twice per day. Tayany is placed in a foster home for medically complex children.
A licensed practical nurse, Katie Z., testified that she began caring for Tayany in December 2017. She provides nursing care four days a week, five hours per day from 3:00 p.m. to 8:00 p.m. She meets Tayany when she gets off her school bus at 3:00 p.m., administers food, water and medicine, monitors Tayany’s heart rate and changes her diapers. Although Tayany can take pureed food by mouth, her water, anti-seizure drugs and pain relief drugs are administered through her gastric tube. Katie Z. testified that Tayany gets her last meds at 7:00 p.m. and is put to bed at 8:00 p.m.
Katie Z. prepares Tayany for her visits with Mother, Father and her siblings. Katie Z. testified that Tayany is happy when she is told that she is going to visits with her family. According to Katie Z., Tayany knows her siblings Tayarix and Tayanny by name, they play together, hug and display affection for each other. Katie Z. testified that, at family visits when she has been present, Father and Mother have consistently attended the visits together since September 2018 when Father was released.
Additional Facts
In 2016, Mother left Worcester and moved to Connecticut where she resided with maternal great grandmother in a one-bedroom apartment. On May 21, 2016, DCF received a report from Connecticut Children’s Medical Center that Tayany was brought to the emergency room by ambulance on due to a seizure. Mother reported that she had relocated to Connecticut and left Tayany’s medicine at maternal grandmother’s home in Massachusetts. Allegations of neglect were substantiated but during the investigation, Mother relocated to Massachusetts.
Tayany had corrective hip surgery in Massachusetts on June 28, 2016. At a follow up appointment, on August 11, 2016, UMASS Memorial Medical Center reported concerns of Tayany’s poor hygiene and skin infection to Massachusetts CPS.
On August 12, 2016, UMASS Memorial Medical Center reported to Massachusetts CPS that Tayany was brought by ambulance to the emergency room due to a seizure.
On September 23, 2016, Massachusetts CPS requested that DCF conduct a courtesy visit to the home of Tayany’s maternal great grandmother in Hartford where Mother had relocated with Tayany and Tayany’s two-year-old sibling Tayarix. At that time, Mother reported to DCF that she planned to reside with maternal great grandmother because there were more resources for her in Connecticut.
In October 2016, DCF commenced an investigation in Tayany’s interest. (Exhibit B.) On October 12, 2016, DCF’s clinical nurse coordinator, Kimberly K., visited maternal great grandmother’s apartment where Mother reported she had been living for the past "couple of weeks." Nurse Kimberly K. reported that Mother informed her that she was relocating to Connecticut but had not yet secured CT Medicaid coverage or a local pediatrician. Although Mother had feeding supplies and medicine on hand for Tayany, she hadn’t arranged local access for replacement. (Exhibit C.)
On October 24, 2016, DCF filed an ex parte motion for an order of temporary custody of Tayany and a neglect petition in her interest. The order of temporary custody was sustained at a hearing on October 28, 2016 and on January 12, 2017, Tayany was adjudicated neglected and committed to DCF. (Dannehy, J.)
Mother’s specific steps entered at the hearing directed Mother to take part in mental health and substance abuse assessment counseling and make progress toward her identified treatment goals i.e., to gain insight into her child’s "developmental/medical needs" and learn "safe and nurturing parenting of a child with special medical needs." (Exhibit E.)
Mother’s specific steps also required Mother to cooperate with substance abuse evaluation including a referral to CRT for a hair test. Mother submitted to an evaluation, tested negative and was not recommended for any services. Social worker Tandoh testified that although Mother’s specific steps required substance abuse evaluation, DCF has no concerns about any substance abuse by Mother.
At the time of Tayany’s removal, Mother was living in maternal great grandmother’s one-bedroom elderly housing apartment. Mother’s lack of stable and appropriate housing for Mother and Tayany was identified as an impediment to reunification. DCF referred Mother to The Connection for Supportive Housing in December 2016 to secure appropriate housing where she could be reunified with Tayany. (Exhibit J, p. 14, testimony of social worker Tandoh.) Mother was placed on a waiting list and sixteen months later, she relocated to Worcester in March 2018 believing that she could obtain housing quicker in Worcester and that she had more supports there. Social worker Tandoh testified that, at the time of trial, Mother has been determined to be eligible for Section 8 housing in Worcester but the housing has not yet been identified.
Social worker Tandoh testified that DCF initiated the ICPC process with Massachusetts CPS and Massachusetts required DCF to identify a secondary support for Mother in order to proceed. Social worker Tandoh testified that DCF interviewed two paternal aunts but to no avail.
Reasonable Efforts
With respect to the statutory element of reasonable efforts to locate and reunify required for termination pursuant to General Statutes § 17a-112(j)(1), the court finds the following.
DCF’s efforts to locate Mother and Father have not been questioned. Mother and Father were served with the petition by a state marshal. The court finds by clear and convincing evidence that DCF made reasonable efforts to locate Mother and Father and accomplished the same.
Reasonable Efforts to Reunify the Child with the Respondents
General Statutes Section 17a-112(j)(1) requires that in a termination of parental rights proceeding, the court also find, by clear and convincing evidence, that DCF made reasonable efforts to reunify the child with the respondent parent(s) unless the court finds that the parent(s) is unable or unwilling to benefit from reunification efforts. "The word reasonable is the linchpin which the department’s efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof." In re Shaiesha O., 93 Conn.App. 42, 48 (2005). "Although [n]either the word reasonable nor the word efforts is ... defined by our legislature or by the federal act from which the requirement was drawn ... [r]easonable efforts means doing everything reasonable, not everything possible." (Internal quotation marks omitted; citation omitted.) In re Ryan R., 102 Conn.App. 608, 619 (2007); In re Mariah S., 61 Conn.App. 248, 255 (2000). "[R]easonableness is an objective standard ... and whether reasonable efforts have been proven depends on the careful consideration of the circumstances of each individual case." (Internal quotation marks omitted.) In re Vincent B., 73 Conn.App. 637, 641 (2002), cert. denied, 262 Conn. 934 (2003). "[T]he department must prove either that it has made reasonable efforts to reunify or, alternatively, that the parent is unwilling or unable to benefit from reunification efforts." In re Jorden R., 293 Conn. 539, 552 (2009).
As noted, Mother has a trauma history from childhood. DCF referred Mother to The Village for Families and Children and Hartford Behavioral Health for mental health evaluation and treatment and the Intensive Family Preservation program. To address Mother’s living between Hartford and Worcester, DCF referred Mother to The Connection for Supportive Housing for housing assistance.
DCF provided Mother with child specific training and child care instructions to care for Tayany’s specialized needs. DCF provided Mother with supervised visits with Tayany at the DCF office, bus passes and case management services.
Tayany’s foster mother, Cynthia D., testified that she has been caring for Tayany since December 2016. Cynthia D. described Tayany as "bubbly" and "friendly." She has a vocabulary of 100 or more words, can count and say her ABCs but cannot recognize the numbers or letters. When she first took Tayany into her care, Cynthia D. took off two and one-half months from work so she could bond with Tayany. Cynthia D. testified that, at some point, DCF’s nurse consultant, Kimberly K., arranged for Tayany to receive 24 hours of nursing coverage per week for a period of time because she returned to work for 24 hours per week. Cyntia D. testified that initially, Tayany required overnight feedings which are no longer required.
In addition to Tayany, Cynthia D. has two other foster children in her care as well as her own 8-year-old daughter. Tayany’s foster mother testified that her 37-year-old daughter lives in her own apartment in the same building and "helps" her with the "kids." Cynthia D. testified that she received child specific training at the Hospital for Special Care to be eligible to care for medically complex children placed by DCF. She testified that her daughter also received the training because she functions as her "support" person. Cynthia D. testified that she has declined to be an adoptive resource due to her age.
Cynthia D. testified that, although it is not her normal practice, she has allowed Mother to call her for information on Tayany’s status. She has regular weekly contact with Mother and has also permitted Mother to speak to Tayany on a cell phone including "face time."
Cynthia D. testified that when Tayany’s nurse, Katie Z., is not available, she prepares Tayany for visits with her family. Like Katie Z. reported, Tayany’s foster mother testified that Tayany appears "happy" in anticipation of visits with her family.
Tayany’s foster mother testified that she makes Tayany’s medical appointments and as they are scheduled she informs Tayany’s social worker of the dates and times of the appointments. Tandoh testified that while Mother resided in Worcester, she was given bus passes to attend Tayany’s physical therapy and other medical appointments in Connecticut. DCF maintains that Mother has failed to be consistent with her attendance at Tayany’s appointments. On cross examination, Tandoh acknowledged that Mother’s attendance issues coincided with her giving birth to Tayaralynn in March 2017 and during October, November and December 2017 when Mother reported to DCF her work schedule resulted in her working "long hours."
Father did not request visits with Tayany during his incarceration. On his release in August or September 2018, DCF provided Father with visits with Tayany and he has consistently attended visits with Mother since his release. Tandoh testified that Mother has no automobile but Father owns one which they share and they attend visits together. Father resides in Worcester and although he lives with his mother, he resides close to Mother and Tandoh conceded that they are "a couple."
When asked on direct examination if Mother was offered and participated in the child specific training that Tayany’s foster mother received, social worker Tandoh replied "yes." When asked by counsel for DCF if Mother received any additional or ongoing training, Tandoh said "no." When asked "why not" she replied "I don’t know."
Mother and Father had weekly visits with Tayany for two hours. The attorney for the minor child asked social worker Tandoh if DCF has offered Mother and Father extended visits so DCF could assess whether Mother and Father would be better able to meet Tayany’s needs if given longer or additional visitations. Tandoh replied "no." When asked "Why not?" Tandoh responded "I don’t know, but we have not." (Transcript, page 132.)
Social worker Tandoh testified that Mother was given the same type of child specific training that was provided to Tayany’s foster mother. Tandoh acknowledged that Mother attended that training. When asked on direct whether DCF provided any additional or ongoing training for Mother, Tandoh replied "no."
When asked by the attorney for the minor child, Social worker Tandoh confirmed that DCF has not offered Father the child specific training to meet Tayany’s special needs. Social worker Tandoh testified that the training "could" be provided to Father but it has not been offered. When asked why it has not been offered, Tandoh replied "I don’t know. We have not offered it to him." Social worker Tandoh acknowledged that the child specific training included day to day care for a medically complex child. Tandoh was then asked if DCF was aware if Father could meet Tayany’s medical needs and she replied "I don’t know if he can, no." but then said "it is possible." (Transcript, p. 30.)
DCF’s nurse consultant, Kimberly K. testified that Mother listened attentively at medical appointments, remained at the appointments, asked questions, appeared to understand what the doctors said and appeared to have an understanding of Tayany’s medical needs. (Transcript, p. 29-30.)
When asked by Mother’s counsel, social worker Tandoh acknowledged that, since September 2018, Mother has shown "a great deal of progress" at visits and attending Tayany’s medical appointments. Social worker Tandoh acknowledged that Mother has enrolled her two other children in day care in Worcester and that they are medically up to date.
Tayany’s nurse, Katie Z. testified that she has observed Mother holding and feeding Tayany, changing her diapers and taking her out of her car seat and putting her back, all without any concerns. Katie Z. testified that since Father’s release, she has observed Father do the same for Tayany, also without any concerns. Katie Z. testified that Tayany calls Father "daddy," he hugs her and displays "love and affection."
On cross examination, Tandoh was asked if DCF had investigated whether the type of nursing assistance provided by Katie Z. that was being given to Tayany’s foster mother could be available to Mother. Social worker Tandoh replied that it "could be possible" but it was "a matter of insurance." When asked if DCF had made any inquiry into whether the nursing assistance could be provided to Mother if Tayana were in Mother’s care, Tandoh replied "no."
Tayany’s attorney advocated for dismissal of the petition as being in the best interest of the child. However, the court cannot address the child’s best interest during the adjudication phase of the proceeding. "[T]he determination of the child’s best interests comes into play only after statutory grounds for termination of parental rights have been established by clear and convincing evidence." (Internal quotation marks omitted.) In Re Zion R., 116 Conn.App. 723, 738 (2009).
Conclusion
Our law has mandated certain standards including the evidentiary standard of proof which must be clearly established before a parent’s parental rights may be terminated. DCF’s burden required it to prove, by clear and convincing evidence, that it made reasonable efforts to reunify Tayany with Mother and/or Father. Whether DCF made reasonable efforts to reunify is based on whether DCF’s efforts and services could effectively assist a parent to overcome the alleged parental deficiencies. In re Unique R., 170 Conn.App. 833, 847-53 (2017). Mother’s treatment goals set forth in her amended specific steps were to "gain insight into [Tayany’s] developmental/medical needs" and learn "safe and nurturing parenting of a child with special medical needs." (Exhibit E.) Father’s treatment goals set forth in his amended specific steps were to "gain insight into [Tayany’s] developmental/medical needs." (Exhibit M.)
The court concludes that DCF’s efforts to reunite Tayany with Mother or Father were not reasonable under the circumstances. Evidence was presented that since Father’s release in September 2018, Mother and Father have consistently attended weekly visits and Tayany’s medical appointments together. Considering the acknowledged progress made by Mother and Father during the nine months since September 2018, DCF was not relieved of its continuing duty to make reasonable efforts to reunite Tayany with Mother and Father. Although the expressed concern of DCF was Mother’s ability to care for Tayany’s medical needs, DCF’s nurse practitioner testified that, at medical appointments, Mother asked questions, listened attentively, appeared to understand what the doctors said and appeared to understand Tayany’s medical needs. That alone, together with the acknowledged progress made by Mother and Father, provided sufficient reason for DCF to provide additional or ongoing training for Tayany’s daily care beyond the initial training provided at the early stage of the case. Moreover, DCF admittedly did not offer any child specific training to Father nor did DCF consider the ability of Mother and Father together to meet Tayany’s needs and provide proper care as a couple or unit. There is substantial evidence in the record of reasonable efforts that DCF could have readily made or explored to assist Mother and Father to overcome the alleged parental deficiencies and confront the challenges presented for them to care for their medically complex child, including the failure to provide additional training or assistance to Mother or, in the case of Father, any training or assistance at all.
On the basis of the credible testimony and the documentary evidence, the court finds that DCF has failed to sustain its burden to prove, by the rigorous standard of clear and convincing evidence, that it made reasonable efforts to reunify Tayana with Mother and Father as required by General Statutes § 17a-112(j).
Accordingly, the petition to terminate Mother and Father’s parental rights to Tayany is dismissed.
Judgment shall enter accordingly. [*] In accordance with Connecticut General Statutes § 46b-142(b) and Practice Book § 32a-7, the names of the parties involved in this case are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Superior Court.