Opinion
Nos. N05-CP07-016526-A, N05-CP09-018010-A
March 31, 2010
MEMORANDUM OF DECISION RE PETITION FOR TERMINATION OF PARENTAL RIGHTS
The Commissioner of the Department of Children and Families (DCF, the department or the petitioner) filed termination of the parental rights (TPR) petitions seeking to terminate the parental rights of Amanda D. (Mother) and Donald R. (Father) the biological parents of Trevor R. (Trevor) and Tyler R. (Tyler). On the first day of the TPR trial, with the consent of all parties, Mother's TPR trial was continued. The trial proceeded with regard to the TPR petitions filed as to Father. Father was represented by legal counsel throughout the proceedings and opposed the termination of his parental rights.
In addition, pursuant to General Statutes § 46b-129(k), on June 22, 2009 the department filed a Motion to Review Permanency Plans for Trevor. The plan proposed by the department was for termination of parental rights and adoption. Mother and Father filed untimely objections to the plan. The permanency plan was approved on July 30, 2009, but the objections to the plan were continued and consolidated with the TPR trial. On November 3, 2009, the department filed a Motion to Review Permanency Plans for Tyler. The plan proposed by the department was for termination of parental rights and adoption. Mother and Father filed objections to the plan. On December 9, 2009, the permanency plan was approved, Mother's objection was over-ruled and Father's objection was continued and consolidated with the TPR trial.
On March 1, 2010, Mother filed a Motion to Revoke the commitment on Trevor and Tyler. The hearing on the motion was consolidated with Mother's TPR trial and continued to a later date.
The trial on Father's TPR petitions and Father's objections to the permanency plans was held on March 15 and 16, 2010.
The court finds it has jurisdiction and there is no known action pending in any other court affecting custody of these children. There is no claim of Native American affiliation of the children.
The TPR proceedings are governed by General Statutes § 17a-112 et seq. In a proceeding for termination of parental rights, the petitioner must first prove, in the adjudicatory phase, a ground for termination alleged in the petition, as of the date of filing the petition or the last amendment, by clear and convincing evidence. In re Joshua Z., 26 Conn.App. 58, 63 (1991); Practice Book §§ 32a-3(b), 35a-7. Only one ground need be established for the granting of the petition. In re Juvenile Appeal (84-BC), 194 Conn. 252, 258, 479 A.2d 1204 (1984); In re Shane P., 58 Conn.App. 234, 242-43 (2000). If a ground for termination is proven, the court must next consider the disposition stage and, at such stage, the court must 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.
The permanency plan hearing is governed by General Statutes § 46b-129 et seq. The petitioner must prove by a fair preponderance of the evidence that the plan is in the best interest of the child.
FACTUAL FINDINGS
The Petitioner presented three witnesses and twenty-three exhibits (Exhibits 1-21 and 23-24). Father presented three witnesses, one of whom was Father, and four exhibits (Exhibits A-D). Exhibit A was admitted as a full exhibit without objection after a stipulation of facts relating thereto was agreed upon and entered on the record. The credible and relevant evidence offered at trial supports the finding of the following facts. Unless otherwise specified, all facts are found by clear and convincing evidence.
The court further sua sponte, took judicial notice of court records including court memoranda and orders made in these cases for their existence, content and legal effect. See Tait Prescott, Tait's Handbook of Connecticut Evidence §§ 2.3.4(d), 2.4.1 and 2.4.2. (4th ed. 2008).
A. Procedural History
On January 4, 2007, the department filed a Neglect Petition and Order for Temporary Custody on behalf of Trevor. The Order of Temporary Custody was granted by the court, Conway, J., on the same day. On May 29, 2007, Trevor was adjudicated uncared for/homeless. He was committed to the care and custody of DCF on the same day and has remained so to date. The Department filed a TPR petition as to Trevor on January 22, 2009.
On February 5, 2009, the department filed a Neglect Petition and Order for Temporary Custody on behalf of Tyler. The Order of Temporary Custody was granted on the same day and subsequently sustained on February 13, 2009. On May 18, 2009, Tyler was adjudicated uncared for/homeless. He was committed to the care and custody of DCF on the same day and has remained so to date. The Department filed a TPR petition as to Tyler December 22, 2009. The trial on Tyler's TPR petition was consolidated with the trial on Trevor's TPR petition.
B. Father
Father was born September 14, 1977 in New Haven, Connecticut. He was raised by his mother until his early teens at which time the department became involved in his life. His guardianship was transferred to his maternal grandmother when he was fourteen years old.
Father attended schools in New Haven, but left school in the 11th grade. Father obtained his GED while incarcerated. He has worked at a variety of entry level positions, primarily in the food services industry. He has never had a long-term job.
Father denied having mental health issues as a child, but later reported that he received counseling services through Clifford Beers in New Haven prior to adulthood. He denied abusing alcohol or drugs. He has admitted to having a gambling problem; one time he took Mother's EBT card, without her consent, and spent $300 on lottery tickets. He was referred to gamblers anonymous by a service provider, but he never attended.
Father and Mother met through his sister. Father's sister and Mother met while they were in treatment together. Mother and Father started dating on her sixteenth birthday (so Father would have been approximately twenty-eight years old). They dated approximately seven months, Mother became pregnant and they married on April 7, 2006. Mother was only sixteen at the time and her mother consented to the marriage. During their relationship there were periods of substance abuse (by Mother), transience and domestic violence. Mother and Father divorced on March 31, 2009. After the divorce, Father continued to live a transient lifestyle.
Father has a criminal history. His first recorded arrest occurred on April 8, 1996 for assault 3 and failure to appear. He was subsequently arrested on June 19, 1997 for larceny 6; January 21, 2003 for criminal trespass 2 and tampering with a motor vehicle; December 7, 2006 for larceny 3; December 22, 2006, for failure to appear; October 31, 2008 for breach of peace 2 and violation of a protective order; January 19, 2009 for assault 3, breach of peace 2 and violation of a protective order; and March 19, 2009 for threatening 2 and violation of protection order.
Father has continued to minimize the domestic violence towards Mother. He reported that he was set up at the time of his arrest on January 19, 2009 for assaulting Mother and violating a protective order that had been issued in her favor. He testified that he never hit Mother and that he never put his hands on her, however, credible evidence to the contrary was introduced. The evidence establishes that on January 19, 2009, during a domestic violence incident, Father grabbed Mother and forcibly twisted her arm around. Further, in an earlier incident, on November 1, 2008, a report of a domestic dispute was called into the East Haven police. An officer on arriving at the scene observed Father to push Mother, grab her face and attempt to choke her. The officer intervened and separated them. Mother reported to the officer that Father hit her in the face before the officers arrived on the scene.
On July 9, 2009, Father was sentenced and committed to the custody of the commissioner of the department of corrections (DOC) for five years, suspended after two years and a period of probation thereafter.
Father has a new girlfriend. She bore a child by him in September 2009. The child has not visited Father since his incarceration. Father testified that he did not want the child to visit, as it would be too upsetting for Father due to his inability to hold the child. The court notes that Father in recounting why he did not want the child to visit was clearly demonstrating that he puts himself first — Father did not testify that he did not want the child to visit because it might be upsetting for the child to visit him in a correctional facility, but rather because it would be difficult for Father. This is consistent with a findings made below.
Father has reported that when he is released he will be living with his girlfriend and their child. He testified that he has a guaranteed job waiting for him at Metro North.
Father also testified that he has come into a sum of money, in the neighborhood of $30,000, from the settlement of a lawsuit. The money is allegedly being held in a bank account in his name and somehow (exactly how was never made clear due to his convoluted and conflicting accounts) he makes money available to his girlfriend from such account for support of their child. He further testified that some amounts are transferred from the bank account to repay the state child support he owes. The testimony as to the current balance of funds available to him, payments to his girlfriend, and payouts made by Father was contradictory and not credible. There was however, credible evidence elicited that Father has never used the proceeds from such lawsuit for the benefit of Trevor and Tyler, except to the extent the state of Connecticut has been able to garnish or withhold monies to satisfy his child support arrearages.
Father reported to the department that he requested an early release from incarceration to be effective on or about February 2010. His request was denied as did not complete certain programs required by DOC. He has again applied for an early release, but he continues to need to complete certain programs before he will be eligible for an early release.
Additional facts will be set forth below as warranted.
C. The Children
Trevor was born on August 9, 2006. Trevor lived with Mother and Father in New York with maternal grandmother until November 2006. They were asked to leave maternal grandmother's home due to threats made by Mother and Father against maternal grandmother. They returned to Connecticut and lived with various relatives, but they were frequently asked to leave due to domestic violence in their relationship.
On January 2, 2007, paternal grandmother called the DCF Hotline to report that Mother and Father were homeless and residing in their car. Trevor was at that time with paternal grandmother, but Father was demanding that she return Trevor to him. Paternal grandmother also confirmed the respondents' domestic violence history to the department. Trevor was removed from Mother and Father's care on January 4, 2007.
Trevor's custody was initially and temporarily vested in his paternal aunt and uncle. In November 2007, his aunt and uncle informed the department that if the plan for Trevor was not reunification with the respondents, they did not want to be considered as a long-term placement resource for Trevor. On May 2008, the respondents and other relatives were advised that at the request of the aunt and uncle, Trevor would be removed from their home and transitioned to a special study foster home. On August 15, 2008, he was placed in such foster home. He adjusted well and remains in the same foster home.
Trevor has been diagnosed with developmental delay. He received Birth to Three services and is currently in the Head Start program at the Early Intervention Program at an elementary school. He receives speech therapy and special education services due to his cognitive and communication delays.
Tyler was born on December 11, 2007. A neglect petition was filed in Connecticut on March 30, 2008 with respect to Tyler. In July 2008, Mother and Tyler relocated to New York and lived with maternal grandmother and her husband. On July 24, 2008, the department withdrew the March 2008 neglect petition. In November 2008, the New York Child Protective Services (NYCPS) became involved in Tyler's life due to ongoing domestic violence and threats from Mother towards grandmother and her husband. Shortly after NYCPS involvement began Mother was asked to leave maternal grandmother's home. Mother left New York and returned to Connecticut. A neglect petition was filed by NYCPS and Tyler's temporary custody was transferred to maternal grandmother. Father reported to DCF that he wanted to go to New York and take custody of Tyler, but he was advised that he was not a suitable placement option at that time. Subsequently, maternal grandmother, due to health issues, advised NYCPS that she could no longer care for Tyler. On January 27, 2009, NYCPS advised the department of the same. On February 2, 2009, maternal grandmother after discussing the matter with NYCPS and the department drove to Connecticut with Tyler and left him with the department. A ninety-six-hour administrative hold was immediately placed on him.
On February 2, 2009, Tyler was placed with his brother. He adjusted well and remains in that home.
Tyler is developmentally on target and there are no reported physical or behavioral concerns.
Additional facts will be set forth below as warranted.
D. Specific Steps:
Specific steps were ordered by the court. The court finds the following with respect to Father's compliance with salient steps:
Keep all appointments set by or with DCF. Cooperate with DCF home visits, announced and unannounced and visits by the child's court-appointed attorney or guardian ad litem.Father missed a couple of the administrative case reviews between 2008 and 2009. He otherwise kept most of his appointments with DCF. Due to Father's incarceration and transience, home visits were not possible.
Keep your children's whereabouts and your own whereabouts known to DCF, your attorney and the attorney for the children.
He was generally compliant with this step, although for a time around February 2008, Father would not disclose his address to the department.
Participate in counseling (Parenting and Individual), make progress toward identified goals and comply with recommended service providers.
The specific goals included providing a stable environment for his children, free of domestic violence; maintaining stable housing and income; and understanding the impact on his children of his anger and mental health issues.
He has not been compliant with this step. He was referred to The Non-Violence Alliance. Father attended an intake evaluation on May 10, 2007. He attended one class, failed to attend the next five classes and was discharged from the program.
Mother and Father were referred to Intensive Family Preservation through the Bridges. Services began in December 2007 and were focused on parent education and support. In January 2008, services were interrupted as the family did not have housing. In February 2008, services resumed as the family had moved into a shelter services. Father was observed, during supervised visits, to "occasionally" become frustrated when [Trevor] cries and "sometimes" calls the baby a derogatory name. (Exhibit 23, page 2.) At the time of their discharge from the program, in April 2008, it was recommended that Father continue mental health counseling and anger management classes, attend gamblers anonymous, obtain parenting education and seek employment.
On March 25, 2008, Father was referred to the Male Involvement Network at the New Haven Family Alliance. His participation began in June 2008, but was short lived. He was discharged from the program in August 2008.
He was referred to the Connecticut Children and Family Center for individual counseling. He was unsuccessful in meeting his goals due to his failure to keep appointments and his inability to follow through with treatment recommendations. His case was closed in June 2008 and it was recommended by the center that he engage in anger management counseling, in-home services and marriage counseling. He did none of that.
Since his incarceration he participated in and completed a domestic violence class; however, it was stipulated that the counselor has not had training in domestic violence counseling and did not verify that Father specifically or adequately addressed his domestic violence issues. Father did complete a thirteen-week parenting class at Osborn Correctional. Father testified that he received individual counseling while being detained in New Haven.
Cooperate with court ordered evaluations or testing and follow recommendations.
On August 8, 2007, Father participated in an evaluation conducted by Eric Frazer, Psy.D. On May 6, 2009, Father participated in an update of the earlier evaluation. Dr. Frazer testified at the trial. He was qualified as an expert in clinical forensic psychology.
Dr. Frazer's evaluation, in reporting on Father's emotional and psychological status, noted that Father's judgment "continues to be compromised to the degree that patterned behaviors of inconsistent employment, arrest for interpersonal violence, relationship discord and orienting his conduct away from parenting responsibility continue." (Exhibit 13, page 21.)
Dr. Frazer's 2009 update included a description of a very disturbing interaction between Father and the children. During the interaction both boys were inconsolable. Trevor continued to cry for "mommy." Tyler basically cried for the duration of the evaluation — which was ended early. During the interaction, Father became upset and cried which only increased the children's distress. Dr. Frazer opined that Father's behavior during the interaction was indicative of his failure to prioritize his children's needs in that Father did not put aside his own difficulties and provide support for his children.
It was noted that "mommy" was, most likely, the foster mother as she was the one who brought Trevor to the evaluation and was outside the evaluation room.
Secure and maintain adequate housing and legal income.
Father did not comply with this step. As of June 2009, Father had lived in at least eight separate places. He currently is housed by the department of corrections and is unemployed.
Have no involvement/further involvement with the criminal justice system. Cooperate with the Office of Adult Probation and comply with conditions of probation.Father did not comply with this step.
Visit the child as often as DCF permits.
From November 2007 to May 2008, R-Kids program was providing supervised visitation with Trevor. Father attended nineteen visits out of twenty-eight. After May 2008, visits were moved to the DCF office. Father continued to visit inconsistently. Father was observed, during supervised visits to become easily frustrated with Trevor and to lack an understanding of Trevor's developmental delays. Since his incarceration, Father receives monthly supervised visits.
II ADJUDICATION
Pursuant to the TPR petition filed on January 22, 2009, the department seeks to terminate the rights of the Father to Trevor and alleges one ground under General Statutes § 17a-112(j)(3)(B)(i). Pursuant to the TPR petition filed on December 22, 2009, the department seeks to terminate the rights of the Father to Tyler and alleges three grounds under General Statutes § 17a-112(j)(3)(A), (B)(i) and (D). Only one ground needs to be established for the granting of the petition. In re Juvenile Appeal (84-BC), supra, 194 Conn. 258; In re Karrlo K., 44 Conn.Sup. 101, 106 (1994), aff'd., 40 Conn.App. 73 (1996).
The court has considered the petitions, the credible evidence presented, and the arguments of counsel. For the reasons stated below, the court finds in favor of the petitioner and terminates the parental rights of Father in Trevor and Tyler.
A. Location and Reunification § 17a-112(j)(1)
In order to terminate parental rights, DCF must prove, by clear and convincing evidence, the statutory element requiring "reasonable efforts to locate the parent and to reunify the child with the parent." C.G.S. § 17a-112(j)(1). "The court need not make that finding, however, if the evidence establishes that the parent is unable or unwilling to benefit from reunification efforts." In re Shaiesha O., 93 Conn.App. 42, 47 (2005).
"The word reasonable is the linchpin on which the department's efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof." Id. at 48. "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, 763 A.2d 71 (2000). In re Shaiesha O., the Appellate Court held that the court must look to events prior to the date the petition was filed, to determine whether reasonable efforts at reunification were made, 93 Conn.App. 42, 47 887 A.2d 415 (2005).
In this case the department has alleged that it made reasonable efforts to reunify Father with Trevor and Tyler. The department further alleges, in the TPR petition filed with respect to Trevor that Father is unable or unwilling to benefit from reunification efforts.
The department provided Father with case management services, supervised and therapeutic visitation and intensive family preservation services. Father was referred to counseling through the New Haven Family Alliance Program, the Non-Violence Alliance and the Connecticut Child and Family Center. The court finds the department made reasonable efforts to reunify Father with these children.
The court further finds that Father chose not to engage in the counseling services made available to him. He did not take advantage of all of the supervised and therapeutic visits made available to him. He chose not to address his presenting issues of unstable housing and lack of income or his propensity for domestic violence in any meaningful fashion. He continued to violate outstanding protective orders and to assault with Mother — to the extent that he is incarcerated as a result thereof. In that he never maintained stable housing, he prevented the department from working towards placing the children with him. For all of the reasons set forth in this memorandum, the court further finds, by clear and convincing evidence, Father is unable or unwilling to benefit from reunification efforts made by the department.
B. Termination of Parental Rights on Ground A
The department claims Father has abandoned Tyler. Abandonment focuses on the parent's conduct. A lack of interest in the child is not the sole criterion in determining abandonment. "Section [17a-112(j)(3)(A)] does not contemplate a sporadic showing of the indicia of interest, concern or responsibility for the welfare of a child. A parent must maintain a reasonable degree of interest in the welfare of his or her child. Maintain implies a continuing, reasonable degree of concern." In re Deana E., 61 Conn.App. 185, 193, 763 A.2d 37 (2000).
The court finds Father from time to time inquired as to Tyler's well being, visited with relative consistency and expressed interest in being reunited with him. For example, upon learning Mother had left Tyler in New York, Father contacted DCF to see if he could pick up Tyler. The DCF worker testified that Father does make inquiries about Tyler's well-being during visits. Father reported to the department that while he was incarcerated he bought Christmas gifts for Tyler (and Trevor) and that paternal grandmother would give the gifts to them. (Exhibit D, narrative of visit of December, 27, 2009.)
Notwithstanding Father's incarceration and his failure to prioritize the needs of Tyler over his own needs, the court finds that while such failures are indicative of Father's immaturity, poor judgment and inability to parent Tyler, they do not equate to his abandonment of Tyler. Given the circumstances, the Father maintained somewhat more than a sporadic showing of interest. The credible evidence does not support a finding, by clear and convincing evidence, that he has abandoned Tyler within the meaning of the statute. The court finds the petitioner has not satisfied her burden and the Ground A is dismissed.
C. Termination of Father's Parental Rights under Ground B(i)
The petitioner alleges that respondent Father's parental rights to Trevor and Tyler should be terminated because he has failed to achieve rehabilitation within the meaning of General Statutes § 17a-112(j)(3)(B)(i).
On May 29, 2007, Trevor was adjudicated uncared for and committed to the custody of the department. On May 18, 2009, Tyler was adjudicated uncared for and committed to the custody of DCF. Thus, the critical issue for this court is whether the respondent has achieved rehabilitation sufficient to render him able to care for these children within a reasonable period of time.
"Personal rehabilitation as used in [Section 17a-112 refers to the restoration of a parent to his or her former constructive and useful role as a parent . . . [The statute] requires the trial court to analyze the [parent's] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time . . . [The statute] requires the court to find, by clear and convincing evidence, that the level of rehabilitation [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." In re Eden F., 250 Conn. 674, 706, 741 A.2d 873 (1999).
CT Page 7696 In re Amneris P., 66 Conn.App. 377, 384-85 (2000). In assessing rehabilitation, the critical issue is not whether the parent has improved his ability to manage his own life, but rather whether he has gained the ability to care for the particular needs of the child at issue. "Terminating a parent's rights is not ordered to punish a parent who has not tried to rehabilitate; it is ordered so as not to punish a child by denying her a safe, permanent home with proven competent caretakers because her biological mother has tried hard but continues to be incapable of providing such a home for her." In re Samantha B., 45 Conn.Sup. 468, 477, 722 A.2d 300 (1997), aff'd, 51 Conn.App. 376, 721 A.2d 1255 (1998).
In assessing rehabilitative progress, the question is not simply how far the parent has come, but have they come far enough to encourage the belief that within a reasonable period of time, the parent can assume his role as parent in the life of the child. In re Stanley D., 61 Conn.App. 224, 230. See also, In re Sheila J., 62 Conn.App. 470, 479-80 (2001). "What constitutes a reasonable time is a factual determination that must be made on a case-by-case basis." In re Stanley D., supra, 231 (quoting In re Michael L., 56 Conn.App. 688, 694 (2000)). Further, the court may, in considering the issue of whether the degree of rehabilitation is sufficient to foresee that the parent may assume or resume within a reasonable time a useful role in the child's life, rely on events occurring after the date of the filing of the termination of parental rights petition. In re Stanley B., supra, 230.
Applying the standards set forth above, the court finds by clear and convincing evidence that Father has failed to achieve such a degree of rehabilitation so as to encourage the belief that within a reasonable period of time, he could assume a role as a parent for these children.
At the time of the 2009 evaluation, Dr. Frazer did not recommend the children be reunified with Father. He summarized Father's deficits as including "chronic psychosocial problems of unstable employment, unstable housing and clinical problems of gambling, depression, behavioral control, and interpersonal judgment." (Exhibit 13, page 24.) Father's multiple deficits did not support reunification. Father has made little, if any, progress in addressing his deficiencies. Dr. Frazer opined that the "overall data does not support the impression that [Father] can resolve his psychosocial and psychological deficits in a reasonable amount of time to assume caregiver responsibilities" . . . It is clear that Father is unable, outside of the regulated life of an inmate, to make the appropriate efforts to engage in services and counseling to address his multiple deficits. With past history serving as a predictor of future behavior, there is no reason to believe that Father would readily and actively engage in the therapy he needs before he can be reunified with these children.
Father has continued to visit the children as often as he has been permitted to do so and there was evidence that of some positive interaction between Father and the children during visits. Dr. Frazer, however, testified that even if the children are having good visits with Father, it does not change his recommendation against reunification. The court may, in its discretion, give great weight to the opinion of a professional in a TPR proceeding. See In re Emerald C., 108 Conn.App. 839, 860 (2008), cert. den., 289 Conn. 923 (2008), In re Christina V., 38 Conn.App. 214, 221, 660 A.2d 863 (1995) and In re Shyliesh H., 56 Conn.App. 167, 176, 743 A.2d 165 (1999).
With these standards as the court's parameters, the court finds by clear and convincing evidence, that Father has failed to achieve such a degree of rehabilitation so as to encourage the belief that within a reasonable period of time, he could resume (or in this case, commence) his role as parent of this child. The court, much like the court in the recently decided case of In re Jordan T., 119 Conn.App. 748, 753-55 (2010), is not relying on Father's incarceration alone in considering Father's failure to rehabilitate. While the incarceration is a significant consideration, particularly as the incarceration resulted from Father's failure to respect and abide by court ordered protective orders, the court is also considering his unaddressed mental health needs, his unaddressed gambling addiction and his poor parenting skills. He was not an appropriate parent before his incarceration and there is no evidence to support a conclusion that the programs available to Father while he has been in the custody of the DOC have addressed his underlying issues. His maximum release date occurs in January 2011. He has already been denied early release once. He is not eligible for early release until he takes additional programs. Any reunification that might be further explored would have to wait until Father is released from prison and for however long thereafter it might take him to rehabilitate himself so as to be able to provide safe, stable and nurturing home for these children. This would include a substantial period of time for Father to engage in therapy to address, among other things, his anger and his domestic violence history, obtain and maintain adequate housing and gainful employment, comply with conditions of probation and avoid further involvement with the criminal justice system and to participate in therapeutic services to facilitate a relationship between Father and these children. The court also finds Father would need to engage in additional parenting classes due to Trevor's specialized needs.
To allow for the time Father would need after his release from incarceration to achieve a degree of reasonable rehabilitation so as to allow for any reasonable belief that he could successfully play a role in this child's life runs counter to our court's long recognized preference for permanency.
Accordingly, for all of the reasons stated above, the court finds the petitioner has met her burden and proven Ground B(i), the "failure to rehabilitate" ground, by clear and convincing evidence.
D. Termination of Parental Rights under Ground D
The petitioner also seeks to terminate the parental rights of Father on the ground that there is no ongoing parent-child relationship between Father and Tyler.
This ground is established when there is no ongoing parent-child relationship, which is defined as the relationship that ordinarily develops as a result of a parent having met on a continuing day to day basis the physical, emotional, moral and educational needs of the child and where allowing further time for the establishment of the parent-child relationship would be detrimental to the best interest of the child. General Statutes § 17a-112(j)(3)(D).
"This part of the statute requires the trial court to undertake a two-pronged analysis. First, there must be a determination that no parent-child relationship exists, and second, the court must look into the future and determine whether it would be detrimental to the child's best interest to allow time for such a relationship to develop . . . In considering whether an ongoing parent-child relationship exists, the feelings of the child are of paramount importance . . . The ultimate question is whether the child has no present memories or feelings for the natural parent . . . Feelings for the natural parent connotes feelings of a positive nature only." (Citations omitted; internal quotation marks omitted.) In re Jonathon G., 63 Conn.App. 516, 525, 777 A.2d 695 (2001). "Where the child's feelings toward the parent are ambivalent, there must be a finding that "no positive emotional aspects of the relationship survive." In re Jessica M., 217 Conn. 459, 470, 586 A.2d 597 (1991).
In re Brea B., 75 Conn.App. 466, 477, 816 A.2d 707 (2003). The ground of no ongoing parent-child relationship contemplates, among others, a situation in which, regardless of fault, a child either has never known his or her parent, or that no relationship has ever developed between them. In re Juvenile Appeal (Anonymous), 181 Conn. 638, 645-46 (1980).
In the adjudicatory phase, the petitioner must establish as to respondent: (1) that no ongoing parent-child relationship exists; and (2) that the allowance of further time for the establishment of such a relationship would harm the interests of the child. In re Jonathon G., 63 Conn.App. 516, 525 (2001).
DCF claims that Father has failed to establish an ongoing parent-child relationship with Tyler. Father was a primary caregiver for Tyler for only about six to seven months of his life as Tyler and Mother moved to New York in late June 2008. Father was on probation at that time and he made no effort to have his probation transferred to New York. He testified that he did visit Tyler in New York and that he tried to have telephone contact with Tyler (who was only an infant at the time), but that Mother was not cooperative. Since Tyler's move to New York, Father's contact with him has been very limited and not one whereby Father provided day to day, continuous, nurturing care.
The 2009 interactional study was a difficult and painful experience for the children. Dr. Frazer saw no indication of the existence of an attachment between Father and Tyler. Dr. Frazer testified that Father's history of unstable housing and incarceration made Father unavailable to Tyler at a time in Tyler's life when consistent, frequent and appropriate interaction with a caregiver is crucial.
Father testified that both of the children love him. The narratives of the supervised visits indicate that, at times, Tyler was happy to see Father. (Exhibit D, narrative of January 22, 2010.) Dr. Frazer, however, testified that even if there are positive visits with Father, it does not mean one can make the leap of interpretation that there is a good and healthy relationship between Father and Tyler.
The court recognizes that there are some circumstances in which the Department's custody of the child leads inexorably to the factual predicate for a finding of no ongoing parent-child relationship. See e.g., In re Valerie D., 223 Conn. 492 (1992). That is not the case in this instance. Father has not met his child's day to day needs since the summer of 2008. It is not that Tyler has been in custody of the Department, but rather that Father has been unavailable to Tyler that has resulted in there being no relationship between them. See In re Amelia W., 62 Conn.App. 500 (2001). See also In re Shane P., 58 Conn.App. 234 (2000).
In this case, it is clear that any bond between that existed between Tyler and Father before his incarceration was not a strong parent-child bond and that no such bond has developed since his incarceration. Father has not been available to meet on a continuous basis the day to day physical and emotional needs of Tyler and, as a result thereof, no parent-child relationship has developed between them. While Father feels he has an ongoing relationship with Tyler, it is not Father's feelings that are dispositive. The court finds, by clear and convincing evidence, there is no on-going parent-child relationship between Father and Tyler.
The court further finds that Father will need a significant period of time after his release from incarceration to address his parental failings. Father and Tyler would also need to receive an unknown amount of therapeutic intervention before a healthy parent child relationship could develop between them. Tyler, given his tender age, needs to continue to develop an enduring bond with a present, consistent and stable caregiver. The court finds, by clear and convincing evidence, that to allow for such additional time for Father would be detrimental to the best interest of Tyler.
To conclude, the petitioner has established, by clear and convincing evidence, one or more statutory grounds exist for the termination of Father's parental rights to Trevor and Tyler. Having so determined, the court must next determine if the facts establish by clear and convincing evidence that termination of the respondent's parental rights is in the best interest of these children.
III DISPOSITION
"During the dispositional phase, the trial court must determine whether termination is in the best interests of the child." In re Quanitra M., 60 Conn.App. 96, 103, 758 A.2d 863, cert. den. 255 Conn. 903, 762 A.2d 909 (2000). Except when the termination of parental rights is based on the consent of the parent "[i]n arriving at that decision, the court is mandated to consider and make written findings regarding seven factors delineated in General Statutes [17a-112(k)]." In re Jonathon G., 63 Conn.App. 516, 528 (2001) (quoting In re Denzel A., 53 Conn.App. 827, 833 (1999)). The court, having read the verified petitions and the exhibits and having weighed the testimony, makes the following seven written findings by clear and convincing evidence:
(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 respondent, the court finds that DCF offered timely and appropriate services to the children. The court further finds DCF offered timely and appropriate services to Father to the extent it was able to do so given the circumstances of this case.
(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 DCF made such efforts.
(3) As to 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, the court finds specific steps were ordered for the respondent. DCF has fulfilled its obligations to facilitate reunification of the family. Father did not.
(4) As to the feelings and emotional ties of the children with respect to the children's parents, any guardian of such children's person and any person who has exercised physical care, custody or control of either or both of the children for at least one year and with whom the children have developed significant emotional ties. Trevor demonstrates affection for Father and he enjoys his visits with him. There is a bond, although it may be an insecure bond, between Trevor and Father. Tyler does not demonstrate any attachment towards Father. During most visits with Father, Tyler engages in independent play and only joins in with Father if Trevor is simultaneously involved in the play. The evidence presented during this trial is that the children have some positive feelings for Mother. Dr. Frazer testified that he did not believe there would be a negative impact on the children if Father's parental rights were terminated and Mother's rights were not. The children have been in their foster home for more than one year. The evidence is that they have a strong bond with the foster parents and they look to them for comfort. The foster parents have been consistent in taking the children to their appointments and meeting their day to day needs. The foster parents have indicated a willingness to adopt both children.
(5) As to the age of the children: Trevor is approximately three and one-half years old. Tyler is approximately two years and three months old.
(6) As to the efforts the parent has 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 children as part of an effort to reunite the children 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 children; the court finds Father did not maintain consistent contact with the children while he was in the community. For all of the reasons set forth herein, the court finds Father has not adjusted his life in any meaningful fashion. The court finds giving Father additional time would not likely enable him to modify his condition to make it in the best interest of the child to be reunited with him. See In re Luis C., 210 Conn. 157, 167, 554 A.2nd 722 (1989).
(7) As to 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, the court finds no unreasonable conduct by the child protection agency, Mother, foster parents or third parties. Further, economic factors did not prevent the Father from rehabilitating himself.
Trevor has been committed to the custody of the department for almost two years — more than one-half of his life. Tyler has been out of his Father's care since late June 2008 — more than one-half of his life. These children need permanency and Father has not shown sufficient progress in his rehabilitation to allow the court to form any reasonable belief that he will be capable of assuming a responsible position in such children's lives within any reasonable time. The court further notes that the children's attorney advocated for the termination of Father's parental rights.
Based upon all of the foregoing, the court by clear and convincing evidence finds termination of the parental rights of Father is in the best interest of Trevor and Tyler.
IV REVIEW OF PERMANENCY PLANS
The Department further seeks to have the court approve the permanency plan of termination of Father's parental rights and adoption filed on June 22, 2009 and November 3, 2009. Father objected to such plans.
General Statutes § 46b-129(k)(1) provides in pertinent part: "Nine months after placement of the child or youth in the care and custody of the commissioner . . . or removal of the child . . . pursuant to section 17a-101g or an order issued by a court of competent jurisdiction, whichever is earlier, the commissioner shall file a motion for review of a permanency plan." The department has the burden of proving that the proposed permanency plan is in the best interests of the child. General Statutes § 46b-129(k)(1). At a permanency hearing held in accordance with this provision, the court shall approve a permanency plan that "is in the best interests of the child . . . and takes into consideration the child's . . . need for permanency. The child's . . . health and safety shall be of paramount concern in formulating such plan." General Statutes § 46b-129(k)(2).
Having considered the evidence presented at the consolidated permanency plan hearing and the termination of parental rights trial, the court hereby finds by a preponderance of the evidence the plans for termination of Father's parental rights and adoption are in the best interests of the children.
The court hereby approves the plans filed on June 22, 2009 as to Trevor and November 3, 2009 as to Tyler. Father's objections are overruled.
The court further finds the department has made reasonable efforts to achieve the plans.
V ORDERS
It is accordingly, ORDERED that the parental rights of Father to Trevor and Tyler are hereby terminated.
Judgment may enter accordingly.
It is so ordered this 31st day of March 2010.