Opinion
No. F02-CP02-002711-C
May 11, 2006
MEMORANDUM OF DECISION RE TERMINATION OF PARENTAL RIGHTS
This memorandum of decision addresses a termination of parental rights (TPR) petition brought to terminate the parental rights of Guadalupe C. (Guadalupe), (DOB: 4/21/78), the biological mother, and Wayne G. Sr., (Wayne Sr.), (DOB: 8/16/53), the biological father of Wayne G. Jr., (Wayne Jr.) (DOB: 9/16/02).
The court finds the following by clear and convicting evidence:
The history of the file reflects that the Department of Children and Families (DCF) has been involved with this family since 12/01 for issues including physical neglect, substance abuse, criminal recidivism, transience and homelessness.
On 9/16/02, Stamford Hospital made a referral to DCF concerning Guadalupe and Wayne Jr. Hospital staff indicated that Guadalupe had tested positive for cocaine while 7 months pregnant, and that Guadalupe had not received appropriate prenatal care during the pregnancy.
On 10/1/02, in Superior Court for Juvenile Matters, 2nd District, located in Norwalk, (SCJM 2nd), DCF filed a Neglect Petition on behalf of Wayne Jr., alleging that Wayne Jr. was neglected, in that he was being permitted to live under conditions, circumstances or associations injurious to his wellbeing. More specifically, DCF alleged that Guadalupe was a substance abuser who had a past history with DCF, which included substantiations for physical neglect as well as having had other children adjudicated neglected and committed to the care and custody of DCF.
DCF further alleged that Wayne Sr. was incarcerated at the Bridgeport Correctional Center.
On 11/4/02, in SCJM 2nd, (Mottolese, Sr. J.), the respondent parties, who were both represented by counsel, appeared in court. After being advised of their rights, Guadalupe entered a nolo contendre plea to the neglect allegation, while Wayne Sr. stood silent. After a canvass, the court accepted the plea, adjudicated Wayne Jr. neglected, and returned him to the custody of Guadalupe under 6 months' protective supervision. The court also issued specific steps for Guadalupe.
On 12/1/02, DCF received a referral from the St. Luke's Community Shelter alleging that Guadalupe was physically neglecting Wayne Jr. St. Luke's personnel alleged that Guadalupe left Wayne Jr. at the shelter's babysitting co-operative and failed to return within 3 hours, which was a violation of the shelter's rules. Eventually, the shelter contacted Wayne Sr.'s father, (MGF), who came and took custody of Wayne Jr., temporarily.
Eventually, Guadalupe appeared at Stamford Hospital, more than a day after leaving Wayne Jr. at the shelter's babysitting co-operative, and indicated that she had been abducted and raped. After an investigation, police ascertained that Guadalupe's claims were false, and had been concocted solely to try to prevent DCF from taking Wayne Jr. into custody.
DCF also indicated that Guadalupe was not in compliance with other aspects of the shelter's program.
Police arrested Guadalupe on an outstanding warrant.
On 12/1/02, DCF took Wayne Jr. into custody on a 96-hour hold.
On 12/2/02, DCF personnel interviewed Guadalupe, who admitted that she failed to comply with aspects of the specific steps, including substance abuse and failing to comply with shelter regulations.
On 12/4/02, in SCJM 2nd, (Mottolese, Sr. J.), DCF sought and obtained an Order of Temporary Custody (OTC) for Wayne Jr. The court found that DCF had made reasonable efforts to prevent or eliminate the need to remove Wayne Jr. from his home.
On 12/11/02, in SCJM 2nd, (Mottolese, Sr. J), the respondent parents and their counsel appeared. The OTC was sustained by agreement of the parties. The court also issued new final specific steps for the respondent parents.
The court opened its 11/4/02 disposition, and committed Wayne Jr. to the care and custody of DCF until further order of the court.
On 1/13/03, in SCJM 2nd, Wayne Jr.'s counsel filed a Request For An In-Court Review.
On 7/22/03, in SCJM 2nd, Attorney D'Orsi, Wayne Sr.'s counsel, filed a Motion to Withdraw Appearance. She indicated that she was closing her practice and moving out of state.
On 8/6/03, in SCJM 2nd, (Mottolese, Sr. J.), the court granted Attorney D'Orsi's Motion to Withdraw Appearance. The court ordered that new counsel be appointed for Wayne Sr.
On 8/6/03, in SCJM 2nd, DCF filed a Motion For Paternity Testing.
On 8/5/03, in SCJM 2nd DCF filed its Motion to Maintain Commitment (MMC) and its Motion to Review Permanency Plan (MRP). The PP called for TPR as to both parents and adoption, as well as a finding of no further efforts towards reunification with either biological parent.
On 8/20/03, in SCJM 2nd, (Reifberg, J.) the court granted DCF's Motion For Paternity Testing.
On 9/15/03, in SCJM 2nd, (Mottolese, Sr. J.), the court granted the MMC. The court did not approve of the PP calling for TPR and adoption and did not indicate that further reunification efforts with either respondent parent were not appropriate. The court found that DCF had made reasonable efforts to achieve the PP. The court ordered that DCF file a new PP. On 11/17/03, in SCJM 2nd, (Mottolese, Sr. J.), DCF orally amended its PP as to Wayne Sr. only. The amendment called for reunification with Wayne Sr., as well as further efforts towards reunification as to Wayne Sr. only.
The court approved of this PP as to Wayne Sr. It also approved of the PP as to Guadalupe, which called for TPR and adoption, as well as a finding that the further efforts to reunify Wayne Jr. with Guadalupe were not appropriate.
On 12/1/03, in SCJM 2nd, (Mottolese, Sr. J.), Wayne Sr. appeared and was canvassed as to new specific steps. Wayne Sr. signed the steps and the court issued them.
The court also granted DCF's request for psychological and interactional evaluations, by agreement.
On 3/30/04, in SCJM 2nd, DCF filed its Motion For No Further Efforts Finding and To Change Venue. The Motion For No Further Efforts Finding requested permission to discontinue visits between Wayne Jr. and Wayne Sr. At this time, Wayne Sr. was incarcerated.
On 4/2/04, in SCJM 2nd, Attorney Sherman, Wayne Sr.'s counsel, filed a Motion to Withdraw Appearance. He indicated that Wayne Sr. had rejected Attorney Sherman's recommendation concerning the disposition of this case, and, consequently, Wayne Sr. had then dismissed him as counsel.
On 4/5/04, in SCJM 2nd, Wayne Sr. filed, pro se, a Motion to Dismiss Counsel.
On 4/14/04, in SCJM 2nd, (Mottolese, Sr. J.), the court granted Attorney Sherman's Motion to Withdraw Appearance, and appointed new counsel. The court also granted Wayne Sr.'s pro se Motion to Dismiss Counsel.
On 4/23/04, in SCJM 2nd, DCF filed a TPR petition concerning Wayne Jr., alleging abandonment, and failure to rehabilitate, and no ongoing relationship as to both respondent parents.
On 5/12/04, in SCJM 2nd, (Mottolese, Sr. J.), the court denied DCF's Motion For No Further Efforts Finding, and indicated that visits between Wayne Jr. and Wayne Sr. should continue on a monthly basis. The court granted the Motion To Change Venue and transferred the case to Superior Court for Juvenile Matters, 1st District, located in Stamford, (SCJM 1st).
On 5/14/04, in SCJM 1st, Attorney Carbone, Wayne Sr.'s counsel, filed a Motion to Withdraw Appearance.
On 6/3/04, in SCJM 1st, (Black, J.), the court granted Attorney Carbone's Motion to Withdraw, and appointed new counsel.
On 8/19/04, in SCJM 1st, (Grogins, J.), the respondent parents appeared and entered denials as to the TPR petitions. Counsel was appointed for both parents.
On 9/10/04, in SCJM 1st, (Hudock, J.), Attorney Goodwin, Wayne Sr.'s counsel, orally motioned the court for permission to withdraw her appearance. The court granted her motion and appointed new counsel.
On 10/21/04, in SCJM 1st, Wayne Jr.'s counsel filed a Motion to Modify Visitation.
On 12/9/04, in SCJM 1st, Wayne Sr.'s counsel filed a Motion In Objection to Motion to Modify Visitation.
On 1/18/05, in SCJM 1st, (Hudock, J.), the court transferred this matter to Superior Court for Juvenile Matters-Child Protection Session, located in Middletown (CPS), for trial. The court also indicated that the Motion to Modify Visitation should be heard at the TPR trial.
On 1/21/05, in SCJM 1st, (Hudock, J.), the court vacated the 1/18/05 CPS transfer order and instead, transferred the matter back to SCJM 2nd.
On 4/4/05, in SCJM 2nd, DCF filed a Motion For Psychological And Interactional Evaluation.
On 4/6/05, in SCJM 2nd, (Mottolese, Sr. J.), the court granted Attorney Summons' Motion to Withdraw Appearance.
Attorney Summons represented Wayne Sr. at this time.
On 4/18/05, in SCJM 2nd, (Mottolese, Sr. J.), the court granted, in part, DCF's Motion For Psychological And Interactional Evaluation. The court ordered a psychological evaluation and an interactional evaluation of Guadalupe. The court also ordered an interactional evaluation of the foster parents.
On 8/15/05, in SCJM 2nd, Wayne Sr. filed, pro se, a Motion to Appoint Counsel.
On 8/31/05, in SCJM 2nd, (Mottolese, Sr. J.), the court denied Wayne Sr.'s Motion to Appoint Counsel.
On 9/14/05, in SCJM 2nd, (Mottolese, Sr. J.), the court transferred this matter to CPS for trial.
On 11/2/05, in CPS, DCF filed a Motion For Technical Correction.
On 11/9/05, in CPS, DCF filed its MMC and its MRP as to Wayne Jr. The PP called for TPR as to both parents and adoption.
On 12/2/05, in CPS, DCF filed a Motion To Appoint Standby Counsel.
At the TPR trial, Wayne Sr. represented himself with assistance from his standby counsel.
On 12/13/05, in CPS, this court granted DCF's Motion For Technical Correction, its Motion To Appoint Standby Counsel and its MMC. This court also ordered that the PP issue be consolidated with the TPR trial.
On 1/4/06, in SCJM 2nd, (Mottolese, Sr. J.), the respondent mother Guadalupe submitted a written consent to the termination of her parental rights of Wayne Jr. The court canvassed Guadalupe and then accepted the consent. The matter was then referred to this court to commence trial on the TPR and the PPs.
On 1/27/06, in CPS, Wayne Sr. filed, pro se, a Motion For a Continuance and a Motion to Subpoena Witness.
On 2/6/06, in CPS this court denied Wayne Sr.'s pro se Motion For a Continuance and granted his pro se Motion to Subpoena Witness.
On 2/10/06, in CPS, this court commenced trial in this matter as to the TPR, the PP, the Motion to Modify Visitation, and the Motion In Objection to Motion to Modify Visitation. The trial was concluded on the same date.
For the reasons stated below, the court finds, by clear and convincing evidence, the TPR issues against the respondent parents and in favor of the petitioner State of Connecticut and DCF.
This court has jurisdiction over the pending case. Notice of this proceeding has been provided in accordance with the applicable provisions of the Practice Book. No action is pending in any other court affecting custody of this child.
FACTUAL FINDINGS
The court has reviewed the neglect and TPR petitions and the exhibits, which included the TPR social study. The court has also reviewed the various motions and objections to same which are the subject of this trial and has taken judicial notice of the record. The court has utilized the applicable legal standards in considering the evidence and the testimony of trial witnesses. Upon deliberation, the court finds that the following facts were proven by clear and convincing evidence at trial.
The court also took judicial notice of the pleadings, petitions, motions, summaries of facts, specific steps, transcripts and court memorandum not related to any judicial pretrials or case status conferences. The court did not review any status reports, social studies or evaluations not otherwise entered into evidence as full exhibits. See In re Stacy G., 94 Conn.App. 348, 892 A.2d 1034 (2006).
"It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony." In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000); see also In re Hector L., 53 Conn.App. 359, 366, 730 A.2d 106 (1999). "The probative force of conflicting evidence is for the trier to determine . . ." In re Jonathon G., 63 Conn.App. 516, 528, 777 A.2d 695 (2001).
GUADALUPE (INCLUDES PHYSICAL, MENTAL, SOCIAL AND FINANCIAL CONDITION)
Guadalupe was born in San Pedrosula, Honduras, on 4/22/78, the daughter of Maria C. (MGM), and Lionel C. (MGF). She has 4 siblings, a brother and 3 sisters. Guadalupe is the second oldest. She reported to be estranged from her siblings, with the exception of her elder sister, Jenny T. (Jenny).
Guadalupe told DCF that most of her family currently resides in Norwalk, and her oldest sister resides in Monroe. Guadalupe indicated that her parents separated upon moving to Norwalk.
Guadalupe described her upbringing as troubled. She related that her parents emigrated from Honduras when she was 7 years old, leaving their children behind. The maternal grandparents sent for their children as they could afford to.
The maternal grandparents left Guadalupe with family friends in Honduras when she was 7 years old. She reported that these family friends treated her poorly and physically punished her. Guadalupe also reported that she was touched inappropriately by one of the men in the home.
Eventually, Guadalupe fled from the home of the family friends and spent the next 10 years living with her schoolteacher in Honduras.
Guadalupe attended high school up until the 9th grade. She moved to Delaware when she was approximately 17 years old.
Guadalupe reported that she was married to Oscar P. (Oscar) for 5 or 6 years and had 2 children from that union; Sonia P., (Sonia), born 10/5/95, and Isabella P., (Isabella), born 8/2/99. Guadalupe and Oscar separated when Oscar went to jail for inappropriately touching his children.
In 12/01, DCF received a referral alleging physical neglect of Sonia and Isabella by Guadalupe. After an investigation, DCF substantiated these allegations. Eventually, MGM assumed guardianship of these children.
Guadalupe has a long history of substance abuse, mental health issues and transience. DCF has referred her to substance abuse treatment both before and after the birth of her son, without success. In the past, she had admitted to using PCP, cocaine, marijuana and alcohol. DCF alleged that Guadalupe tested positive for cocaine on 1/7/02 and 7/9/02.
DCF referred Guadalupe to Bridgeport Community Mental Health Center (BCMHC) for her mental health issues and substance abuse issues. However, as of 6/8/03, Guadalupe was whereabouts unknown to both BCMHC and to DCF.
As of 1/2/03, Guadalupe was residing at the Stamford Shelter. She began substance abuse treatment at Project Reward on 1/7/03, but failed to continue with the program after 1/23/03. Guadalupe was discharged from the shelter for non-compliance.
On 4/10/03, DCF took Guadalupe to an intake interview at Yale New Haven Hospital for substance abuse treatment, but she was found to be ineligible to participate in the program.
Guadalupe was in and out of the St. Luke's Shelter and abusing substances until 5/7/03. On that date, she contacted Liz Masi, Early Intervention Specialist from Project Reward, seeking assistance and indicating that she had attempted suicide a few days ago. DCF personnel and Masi picked up Guadalupe from a hotel and brought her to Stamford Hospital. Guadalupe admitted to several thoughts of suicide, 2 suicide attempts in the past week and abuse of PCP, cocaine, alcohol and marijuana. She was admitted to the hospital, but was soon discharged to BCMHC.
Guadalupe was evaluated at BCMHC and commenced treatment for depression.
On 6/2/03, DCF took Guadalupe to an intake interview at Crossroads.
On 6/8/03, BCMHC gave Guadalupe a 1/2 day pass from the facility. She never returned to the program.
From 6/8/03 to 8/16/04, Guadalupe was whereabouts unknown to DCF. She failed to contact DCF regarding Wayne Jr.'s welfare or to inquire about her DCF case. On 8/16/04, Guadalupe called DCF and reported that she was incarcerated at York Correctional Facility for violation of probation. During this telephone call, Guadalupe inquired about Wayne Jr.'s welfare, but did not request visitation with him.
Guadalupe was released from York Correctional Facility on 11/16/05 to the Mary Magdalene Halfway House in Bridgeport and was still placed there as of 2/7/06.
At her request, Guadalupe had her first visit with Wayne Jr. in 2 years. The visit which occurred on 12/8/05, went well and the interactions were observed to be positive and appropriate. Guadalupe focused her attention on Wayne Jr. during the visit and she provided him with toys. They both played together, colored pictures, and took photos during the visit.
During this visit, Guadalupe did not present herself to Wayne Jr. as his mother and he did not refer to Guadalupe as his mother.
Guadalupe has consistently stated to DCF that she feels Wayne Jr. is in a good placement in the present foster home and he is well cared for by the foster parents. She reported that she intends to focus on herself and her rehabilitation and she intends to avoid contact with Wayne Sr. Guadalupe has consistently stated that she feels Wayne Jr. should not be returned to Wayne Sr.'s care and that Wayne Jr. should be adopted by his foster parents, and that she is in agreement with DCF's plan of adoption for Wayne Jr.
On 1/4/06, in SCJM 2nd, (Mottolese, Sr. J.), the respondent mother Guadalupe submitted a written consent to the termination of her parental rights of Wayne Jr. The court canvassed Guadalupe concerning her consent, and then accepted the consent.
Guadalupe and Wayne Jr.'s relative caretakers have agreed to an informal, open adoption arrangement where Guadalupe will be able to visit with Wayne Jr. on holidays and during family get-togethers as long as Guadalupe is doing well and the visits do not negatively impact Wayne Jr.
On 10/14/05, Dr. David Mantell, Ph.D., performed an evaluation in this case. Dr. Mantell, who was found to be an expert in the areas of clinical psychology with expertise in child psychology, and in child protection, testified that he believed that Guadalupe's chances of rehabilitation from her issues were poor.
WAYNE SR. (INCLUDES PHYSICAL, MENTAL, SOCIAL AND FINANCIAL CONDITION)
Wayne Sr. was born on 8/16/53 in Stamford, and has lived in the Fairfield County and the New York Metropolitan area. His last known address, outside of correctional facilities, was in White Plains, N.Y. He has 3 brothers, one of whom resides in Florida. His 2 sisters are deceased.
At the TPR trial, Wayne Sr. testified that he used to sell antique furniture. He also indicated that he received SSI benefits in the past. He reported that he is presently a songwriter. The clear and convincing evidence indicates that he has not held full-time employment when he was at liberty during the course of this matter.
Wayne Sr. has an adult daughter, Dawn, from whom he is estranged.
Wayne Sr. testified that he is not a substance abuser, and that he is a cancer survivor.
Wayne Sr. has an extensive past criminal record and has spent most of his adult life incarcerated. In Connecticut, he has a criminal record which dates back to 1970. He has convictions in Connecticut for Breaking and Entering, Trespass, Breach of Peace (5 cts.), Attempted Larceny, Robbery 2nd Degree, Larceny 3rd Degree (4 cts.), Larceny 1st Degree (2 cts.), Burglary 3rd Degree (4 cts.), Burglary 2nd Degree, Failure to Appear 1st Degree, and Larceny 2nd Degree (2 cts.).
In 1986, Wayne Sr. was convicted in New York for Larceny and was sentenced as a career criminal to a jail term of not less than 15 years, nor more than life. He is also on parole for the rest of his life.
On 12/7/03, Wayne was arrested by members of the Norwalk Police Department (NPD) and charged with Larceny 2nd Degree. Off. Sixto of the NPD testified that Wayne Sr. was stopped while operating a stolen Cadillac near the Norwalk/Wilton town lines. He further testified that, at the time of the stop, he observed Wayne Sr. in the Cadillac, that Wayne Sr. refused to exit the vehicle, and refused to release his grasp upon the steering wheel of the vehicle. Off. Sixto testified that Wayne Sr. had to be forcibly removed from the Cadillac, and that once out of the vehicle, Wayne Sr. struggled with the officers and refused to be handcuffed. On cross-examination, Off. Sixto indicated that he had to remove Wayne Sr.'s hands from the steering wheel.
On 4/1/05 in Superior Court, Geographical Area Twenty, Norwalk, Wayne Sr. was convicted of Larceny 2nd Degree concerning the above incident and was sentenced to a 3-year jail term. His maximum release date is 2/3/2007.
DOC records that were entered into evidence indicated that Wayne Sr. had no minimum release date.
At the time of the TPR trial, Wayne Sr. was incarcerated at Corrigan/Radowski Correctional Institution.
Off. Brevard of the Stamford Police Department (SPD) testified that he received information that Wayne Sr. was going to visit Wayne Jr. at the Stamford DCF office on 12/29/03, that he would arrive for the visit in a stolen car, and that there was an outstanding arrest warrant for Wayne Sr. out of the state of New York. Consequently, he and other SPD personnel set up surveillance at the DCF office, where they observed Wayne Sr. arrive in a motor vehicle that had been reported stolen. He was then arrested for the stolen motor vehicle charges, as well as the New York charges.
Wayne Sr. was not convicted of any charges related to the theft of this motor vehicle.
The clear and convincing evidence indicates that the State of New York has lodged a detainer against Wayne Sr. At the TPR trial, Wayne Sr. testified that he is scheduled to be returned to New York to answer parole violation charges on 5/4/06.
The clear and convincing evidence in this matter indicates that, upon his release from jail, the respondent father admitted to DCF Social Work Supervisor Pleasant that he was unable to raise Wayne Jr.
On 12/9/03, Pleasant had a telephone conversation with Wayne Sr. Wayne Sr. admitted that he was overwhelmed by the specific steps, that he didn't want to comply with the steps and that he couldn't care for his son. He also stated to Pleasant that he had previously served 15 years in jail, that he couldn't handle freedom, and that he was going to return to jail.
WAYNE JR. (INCLUDES PHYSICAL, MENTAL AND EMOTIONAL STATUS OF THE CHILD AS REQUIRED BY CGS § 45a-717(e)(1).)
Wayne Jr. was born in Stamford on 9/16/02, the sole issue of the relationship between Guadalupe and Wayne Sr. Wayne Sr. was incarcerated at the time of Wayne Jr.'s birth, and was not released until after Wayne Jr. was in DCF custody. Wayne Jr. lived with his mother for the first 2 1/2 months of his life before DCF took him into its custody.
Wayne Jr. was exposed to cocaine in utero, as determined by Guadalupe's positive drug test on 7/9/02. Guadalupe did not receive prenatal care while pregnant with Wayne Jr.
Wayne Sr. has been at liberty for only 3 months of his son's life.
Wayne was placed at Kids In Crisis Safe Home on 12/1/02 and received a complete physical exam on 12/2/02. He was then moved to a licensed foster home on 12/6/02. That foster mother did not indicate any concerns for Wayne Jr. and reported that he was a happy baby.
On 2/4/03, Wayne Jr. was moved into another foster home and remained with the family until placed in his present relative placement on 12/5/03.
The clear and convincing evidence indicates that when Wayne Jr. was placed with the foster parents, he was developmentally behind, and was not walking or talking. Wayne Jr. has progressed well in his present foster home, and is developmentally up to date. He refers to his foster parents as "mommy" and "daddy," and appears happy and content in his foster home.
Wayne Jr. appears to be a bright child who can speak in both English and Spanish. He can count, sing the alphabet and spell his name.
The foster parents refer to Wayne Jr. as Brett, and Wayne Jr. has begun to call himself Brett, to the consternation and upset of Wayne Sr.
Wayne Jr. participates in all aspects of his foster parents' lives, and is a member of their extended family. He attends family gatherings, celebrations and vacations.
The foster parents work during the day, and Wayne Jr. attends daycare with a provider who is also a member of his extended maternal birth family.
When he was placed with the present foster parents, Wayne Jr. was suffering from respiratory problems. In 7/05, the foster parents had Wayne Jr. seen by a sleep specialist because of concerns with his breathing while sleeping. Wayne Jr. was involved in a diagnostic sleep study and was found to have potentially life threatening obstructive sleep disordered breathing. He was then seen by an Ear Nose and Throat specialist who performed a tonsillectomy on 7/29/05. Wayne Jr. has recovered well with no medical concerns or further breathing difficulty. There are no other medical concerns.
Dr. Mantell testified that he found Wayne Jr. to be friendly and sociable. He indicated that Wayne Jr. had good verbal skills and was bilingual. He found Wayne Jr. to be an active child who was appropriate for his age.
Dr. Mantell testified that Wayne Jr. was bonded to his foster parents, who occupied roles in his life.
Dr. Mantell opined that it was not in Wayne Jr.'s best interests to allow time for him to establish a relationship with Wayne Sr. Believing that permanency was important to Wayne Jr., Dr. Mantell testified that Wayne Jr. must secure his primary relationships with his caretakers as soon as possible, and that it was not in Wayne Jr.'s best interests to wait until Wayne Sr. was released from jail to establish a relationship with his biological father.
The clear and convincing evidence indicates that Wayne Jr.'s visits with his biological father have been problematic. Wayne Jr. does not enjoy attending the visits and becomes upset when he has to go see Wayne Sr. He sits down, cries and says "No Wayne." When the social worker went to pick him up for a visit, Wayne Jr., ran away and attempted to hide. He also tried to induce the social worker to take another child from his daycare to the visit instead. Although there was some testimony that Wayne Jr. has enjoyed some aspects of the visits, the clear and convincing evidence also shows that, after the visits, Wayne Jr. returns to the foster home in an agitated state, in a bad mood and not in his normal disposition.
Wayne Jr. is presently placed in a pre-adoptive home with Guadalupe's cousin, FF, and his wife, FM. FM, who testified at the TPR trial, indicated that she and her husband wished to adopt Wayne Jr.
RELATIVE RESOURCES
The clear and convincing evidence shows that DCF has utilized the only viable blood relative resources for placement of Wayne Jr.
Wayne Jr.'s maternal aunt Jenny recommended the foster parents as a placement resource to DCF. When contacted, Guadalupe indicated that she did not oppose the foster parents' having guardianship of Wayne Jr. Subsequently, she agreed that the foster parents should adopt Wayne Jr. and, on 1/4/06, in SCJM 2nd, consented to the termination of her parental rights.
At the TPR trial, Wayne Sr. testified that he put forth his brother, Roger G., as a placement resource, but that DCF refused to consider him.
DCF Social Work Supervisor Pleasant testified that he did not pursue the paternal uncle in Florida because Wayne Jr. was already placed with his maternal relatives.
SIBLINGS
FM testified that Wayne Jr. sees his sisters Sonia and Isabella at family functions. There was no evidence as to the nature of his relationship with any of his half-sisters.
There was no evidence presented as to whether Wayne Jr. has any knowledge of his half-sister Dawn.
At the TPR trial, Wayne Sr. testified that his daughter Dawn was employed at the Safe House where Wayne Jr. was placed as an infant, and that she provided care for her half-brother while Wayne Jr. was there.
ADJUDICATION
On 11/4/02, in SCJM 2nd, (Mottolese, Sr. J.), the court adjudicated Wayne Jr. neglected and returned him to the custody of Guadalupe under 6 months' protective supervision.
On 12/11/02, in SCJM 2nd, (Mottolese, Sr. J.), the court granted DCF's Motion to Reopen and Modify. It reopened its 11/4/02 disposition, and committed Wayne Jr. to the care and custody of DCF until further order of the court.
The court is next called upon to determine whether the petitioner has met its burden of proving the allegations presented by the pending TPR petitions. Practice Book § 35a-3.
"A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition . . . In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights [under § 17a-112(j) exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child." (Internal quotation marks omitted.) In re Jermaine S., 86 Conn.App. 819, 827, 863 A.2d 720, cert. denied, 273 Conn. 938, 875 A.2d 43 (2005).
In the adjudicatory phase of these proceedings, the court has considered the evidence related to circumstances and events prior to 4/23/04, the date upon which DCF filed the TPR petition in SCJM 2nd. With regard to the allegations of failure to achieve rehabilitation and no ongoing relationship brought against the respondent father, the court has also considered the evidence and testimony related to circumstances occurring through the close of trial. Upon review, the court has determined by clear and convincing evidence that statutory grounds for termination of parental rights exist as to both respondent parents.
"Under § 17a-112, a hearing on a petition to terminate parental rights consists of two phases: the adjudicatory phase and the dispositional phase. During the adjudicatory phase, the trial court must determine whether one or more of the four grounds for termination of parental rights set forth in [§ 17a-112(j)] exists by clear and convincing evidence. The commissioner . . . in petitioning to terminate those rights, must allege and prove one or more of the statutory grounds." (Internal quotation marks omitted.) In re Quanitra M., 60 Conn.App. 96, 102, 758 A.2d 863, cert. denied, 255 Conn. 903, 762 A.2d 909 (2000).
Practice Book § 35a-7(a) generally provides that "[i]n the adjudicatory phase, the judicial authority is limited to evidence of events preceding the filing of the petition or the latest amendment . . ."
"Despite Practice Book § 35a-7(a) and case law regarding termination proceedings generally, we have determined that with regard to termination petitions brought under § 17a-112(c)(3)(B), the trial court may, in the adjudicatory phase, properly consider facts and events that occur after the filing date of the petition in determining whether a respondent has achieved a sufficient degree of personal rehabilitation within the meaning of that statute. See In re Stanley D., 61 Conn.App. 224, 230, 763 A.2d 83(2000)." In re Latifa K., 67 Conn.App. 742, 748, 789 A.2d 1024 (2002). Events occurring after the date of the filing of the TPR petition are particularly relevant to the issue of, "whether the degree of rehabilitation is sufficient to foresee that the parent may resume a useful role in the child's life within a reasonable time." (Emphasis in original.) In re Stanley D., supra, 61 Conn.App. 230.
LOCATION AND REUNIFICATION EFFORTS
In order to terminate parental rights, the court must find, by clear and convincing evidence, that DCF "has made reasonable efforts to locate the parent and to reunify the child with the parent, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts provided such finding is not required if the court has determined at a hearing that such efforts are not appropriate." C.G.S. § 17a-112(j)(1). In this context "[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 Antonio M., 56 Conn.App. 534, 547, 744 A.2d 915 (2000); see also In re Daniel C., 63 Conn.App. 339, 362, 776 A.2d 487 (2001).
"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) In re Mariah S., 61 Conn.App. 248, 255, 763 A.2d 71 (2000), cert. denied, 255 Conn. 934, 767 A.2d 105 (2001) "[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 Hector L., 53 Conn.App. 359, 372, 730 A.2d 106 (1999). Only "reasonable" efforts are required as "[i]t is axiomatic that the law does not require a useless and futile act." In re Antony B., 54 Conn.App. 463, 476, 735 A.2d 893 (1999).
In this case, the clear and convincing evidence shows that DCF made reasonable efforts to locate the respondent parents and to maintain contact with them. The clear and convincing evidence also shows that the respondent parents failed to maintain consistent contact with DCF.
The State proved, by clear and convincing evidence, that DCF provided the following services to the respondent mother Guadalupe, or that the following services were provided to her:
BCMHC: mental health treatment and substance abuse treatment
DCF: case management services, visitation
DOC/Division of Parole
Dr. David Mantell: psychological evaluation and interactional evaluation.
Mary Magdalene Halfway House
Project Reward: substance abuse treatment CT Page 9443
Stamford Hospital: medical care, psychiatric services
St. Luke's Shelter
The clear and convincing evidence shows that Guadalupe failed to fully comply with most of the services to which she was referred. As of the date of the TPR trial, she was placed by DOC/Division of Parole at the Mary Magdalene Halfway House.
Considered carefully, the clear and convincing evidence shows that DCF made reasonable efforts to reunite the respondent mother Guadalupe with her son. In re Antonio M., supra, 56 Conn.App. 547; see also In re Brendan C., 89 Conn.App. 511, 524, 874 A.2d 826, cert. denied, 274 Conn. 917, 879 A.2d 893, and 275 Conn. 910, 882 A.2d 669 (2005).
On 12/4/02, in SCJM 2nd, (Mottolese, Sr. J.), the court found that DCF had made reasonable efforts to prevent or eliminate the need to remove Wayne Jr. from his home.
On 11/17/03, in SCJM 2nd, (Mottolese, Sr. J.), the court approved of the PP as to Guadalupe, which called for TPR and adoption. The court also found that the further efforts to reunify Wayne Jr. with Guadalupe were not appropriate.
The State proved by clear and convincing evidence that DCF provided the following services to the respondent father Wayne Sr., or that the following services were provided to him:
DCF: case management services, visitation.
individual counseling
Intensive Family Preservation: in-home support services
parenting classes
paternity testing
The clear and convincing evidence shows that Wayne Sr. refused to comply with any of the above services, with the exception of visitation and paternity testing.
The clear and convincing evidence in this matter indicates that, upon his release from jail, the respondent father admitted to DCF Social Work Supervisor Pleasant that he was unable to raise Wayne Jr.
On 12/9/03, Pleasant had a telephone conversation with Wayne Sr. Wayne Sr. admitted that he was overwhelmed by the specific steps, that he didn't want to comply with the steps and that he couldn't care for his son. He also stated to Pleasant that he had previously served 15 years in jail, that he couldn't handle freedom, and that he was going to return to jail.
Considered carefully, the clear and convincing evidence shows that DCF made reasonable efforts to reunite the respondent father Wayne Sr. with his son. In re Antonio M., supra, 56 Conn.App. 547; see also In re Brendan C., supra, 89 Conn.App. 524.
Furthermore, DCF further fulfilled its obligation to make reasonable efforts to reunify Wayne Sr. with his son by providing practicable and appropriate visitation at his places of incarceration when the respondent father was confined. See In re Roshawn B., 51 Conn.App. 44, 56-57, 720 A.2d 1112 (1998). Obviously, DCF was unable to provide additional services due to Wayne Sr.'s long periods of incarceration during the pendency of this case.
Generally, while a respondent parent is imprisoned, DCF is effectively excused from providing reunification services other than visitation. See In re Roshawn R., 51 Conn.App. 44, 56-57, 720 A.2d 1112 (1998). For a review of Superior Court cases applying this rule, see In re Destiny Q., Superior Court, Juvenile Matters, Child Protection Session, Doclcet No. U06-CP99-002230-A (November 19, 2001, Levin, J.).
Based on the clear and convincing evidence of the circumstances present in this case, the court finds that neither respondent parent is able and/or willing to benefit from reasonable reunification efforts. C.G.S. § 17a-112(j)(1). Their serious issues clearly and convincingly make them unable and/or unwilling to benefit from reasonable reunification efforts. In re Amelia W., 62 Conn.App. 500, 504-05, 772 A.2d 619 (2001); see In re Ebony H., 68 Conn.App. 342, 350, 789 A.2d 1158 (2002).
The court further finds that the clear and convincing evidence presented in this case indicates that both Guadalupe and Wayne Sr. were aware of their issues and deficits and had received specific steps addressing said issues. However, the clear and convincing evidence also shows that despite this notification, both parents remained unable and/or unwilling to benefit from reasonable reunification services.
On 12/4/02, in SCJM 2nd, (Mottolese, Sr. J.), the court found that DCF had made reasonable efforts to prevent or eliminate the need to remove Wayne Jr. from his home.
On 9/15/03, in SCJM 2nd, (Mottolese, Sr. J.), the court found that DCF had made reasonable efforts to achieve the PP.
On 11/17/03, in SCJM 2nd (Mottolese, Sr. J.), the court approved of a PP as to Wayne Sr. calling for reunification and found that further efforts to reunify Wayne Sr. with Wayne Jr. were appropriate. It also approved of the PP as to Guadalupe, which called for TPR and adoption, as well as a finding that the further efforts to reunify Wayne Jr. with Guadalupe were not appropriate.
On 5/12/04, in SCJM 2nd, (Mottolese, Sr. J.), the court denied DCF's Motion For No Further Efforts Finding, and indicated that visits between Wayne Jr. and Wayne Sr. should be monthly.
This court finds by clear and convincing evidence that further efforts at reunification are not appropriate for either respondent parent with regard to Wayne Jr.
STATUTORY GROUNDS FOR TERMINATION AS TO GUADALUPE CONSENT-CGS § 17a-112(a) et al.
The petitioner alleges that Guadalupe's parental rights should be terminated because she has consented to the termination of her parental rights of Wayne Jr. This court finds that the State has sustained its burden on the issue of consent against Guadalupe by clear and convincing evidence. On 1/4/06, in SCJM 2nd, (Mottolese, Sr. J.), the respondent mother Guadalupe submitted a written consent to the termination of her parental rights as to Wayne Jr. The court canvassed Guadalupe, who was assisted by counsel, and then accepted the consent.
Consent is a ground for a TPR pursuant to CGS § 17a-112(a) et seq.
STATUTORY GROUNDS FOR TERMINATION AS TO WAYNE SR. ABANDONMENT — CGS § 17a-112(j)(3)(A)
The petitioner first alleges that Wayne Sr. abandoned Wayne Jr., within the meaning of CGS § 17a-112(j)(3)(A). In the absence of clear and convincing evidence supporting this allegation, applying the requisite legal standards and construing the statute in compliance with the mandate of § 17a-112(q), the court finds this issue in favor of the respondent father.
CGS § 17a-112(j)(3)(A) provides for the termination of parental rights where "[t]he child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child . . ."
"Abandonment focuses on the parent's conduct . . . General Statutes [§ 17a-112(j)(3)(A)] defines abandonment as the fail[ure] to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child. Attempts to achieve contact with a child, telephone calls, the sending of cards and gifts, and financial support are indicia of interest, concern or responsibility for the welfare of a child . . . Abandonment occurs where a parent fails to visit a child, does not display love or affection for the child, does not personally interact with the child, and demonstrates no concern for the child's welfare . . . 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 . . . The commonly understood obligations of parenthood entail these minimum attributes; (1) express love and affection for the child; (2) express personal concern over the health, education and general well-being of the child; (3) the duty to supply the necessary food, clothing and medical care; (4) the duty to provide an adequate domicile; and (5) the duty to furnish social and religious guidance." (Internal quotation marks omitted.) In re Jermaine S., supra, 86 Conn.App. 839-40.
CGS 17a-112(q) establishes that the provisions of CGS § CT Page 9474 17a-112 "shall be liberally construed in the best interests of any child for whom a petition under this section has been filed."
The clear and convincing evidence related to Wayne Sr.'s conduct reveals that, from the date of Wayne Jr.'s commitment to DCF on 12/9/02 through the filing date of the TPR petition, 4/23/04, Wayne Sr. did not fail "to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child . . ." (Internal quotation marks omitted.) In re Jermaine S., supra, 86 Conn.App. 839.
DCF's allegations as to abandonment relate to Wayne Sr.'s failures to attend scheduled visitation with Wayne Jr., or being late for visits.
The clear and convincing evidence indicates that Wayne Sr. missed visits with his son in 9/03 and 10/03, as well as 1 additional visit prior to the filing of the TPR petition. The evidence shows that he did attend subsequent visits with his son through 12/29/03, when he was arrested at the DCF office when he arrived for a visit operating a stolen motor vehicle. Both Pleasant and DCF Social Work Supervisor Andrew Whalen testified that Wayne Sr. complied with visitation while at liberty, though admittedly not to the degree that either witness sought or expected.
Additionally, the clear and convincing evidence reveals that Wayne Sr. did sent letters to his son and sent 1 gift to him.
The clear and convincing evidence indicates that Wayne Sr. has been incarcerated for all but 3 months of the child's life. However, the welter of case law in Connecticut indicates that mere incarceration does not constitute abandonment in itself.
In In re Shane P., 58 Conn.App. 244, 255, 754 A.2d 169 (2000), the Appellate Court wrote the following:
"Since our Supreme Court's pronouncement in State v. Anonymous, supra, 179 Conn. 155, more than twenty years ago, our state's appellate case law has further shaped and circumscribed the meaning of abandonment. Abandonment focuses on the parent's conduct . . . A lack of interest in the child is not the sole criterion in determining abandonment . . . General Statutes [§ 17a-112(c)(3)(A)] defines abandonment as the [failure] to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child . . . Attempts to achieve contact with a child, telephone calls, the sending of cards and gifts, and financial support are indicia of interest, concern or responsibility for the welfare of a child . . . Abandonment occurs where a parent fails to visit a child, does not display love or affection for the child, does not personally interact with the child, and demonstrates no concern for the child's welfare . . .
"Section [17a-112(c)(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 . . .
"The commonly understood general obligations of parenthood entail these minimum attributes: (1) express love and affection for the child; (2) express personal concern over the health, education and general well-being of the child; (3) the duty to supply the necessary food, clothing, and medical care; (4) the duty to provide an adequate domicile; and (5) the duty to furnish social and religious guidance." (Internal quotation marks omitted.)
The Appellate Court also addressed the burdens placed upon incarcerated parents in In re Shane:
Guidance also exists for an incarcerated parent. Our case law has noted that a parent's incarceration does not absolve him of the requirement that he maintain contact with this child. Although a parent's imprisonment alone does not constitute abandonment . . . [t]he restrictions on movement that are inherent to incarceration, however, do not excuse a failure to make use of available, albeit limited, resources for communication with [his child] . . . A parent's interest in his child must not merely be sporadic in nature, but must exist on a consistent and continuing basis. (Citations omitted; internal quotation marks omitted.) In re Shane P., supra, 58 Conn.App. 256.
The clear and convincing evidence shows that Wayne Sr. has visited his son while incarcerated. The evidence also shows that he has been in touch with DCF.
Based on Wayne Sr.'s continued contact with DCF concerning Wayne Jr. prior to the filing date of the TPR petition, and his visitation, the court cannot conclude, by clear and convincing evidence, that he has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child.
PARENTAL FAILURE TO REHABILITATE-CGS § 17a-112(j)(3)(B)
The petitioner State of Connecticut and DCF alleges that Wayne Sr.'s parental rights should be terminated because he has failed to achieve rehabilitation within the meaning of CGS § 17a-112(j)(3)(B). As Wayne Jr. has been adjudicated neglected, the critical issue for this court is whether the respondent father has achieved rehabilitation sufficient to render him able to care for his child. Applying the requisite legal standards and construing the statute in compliance with the mandate of CGS § 17a-112(q), the court finds this issue in favor of the petitioner.
CGS § 17a-112(j)(3)(B) provides that parental rights may be terminated by the Superior Court as to the parent of a child who "(i) has been found by the . . . Court to have been neglected or uncared for in a prior proceeding, or (ii) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . ."
"Personal rehabilitation as used in [Section 17a-112] refers to the restoration of a parent to his or her former constructive useful as parent . . . [The statute] requires the trial . . . to find, by clear and convincing evidence, that the level of rehabilitation [she] has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date [she] can assume a responsible position in [her] child's life. (Citations omitted; internal quotation marks omitted.) In re Eden F., 250 Conn. 674, 706, 741 A.2d 873 (1999) [I]n assessing rehabilitation, the critical issue is not whether the parent has improved [her] ability to manage [her] own life, but rather whether [she] has gained the ability to care for the particular needs of the child at issue." (Internal quotation marks omitted.) In re Sarah Ann K., 57 Conn.App. 441, 448, 749 A.2d 77 (2000). See also In re Ashley S., 61 Conn.App. 658, 665, 769 A.2d 718, 718, cert. denied, 255 Conn. 950, 769 A.2d 61 (2001); In re Alejandro L., 91 Conn.App. 248, 259, 881 A.2d 450 (2005).
Several aspects of the clear and convincing evidence in this case compel the conclusion that Wayne Sr. has yet to achieve a sufficient "level of rehabilitation . . . which would reasonably encourage a belief that at some future date [he] can assume a responsible position in [his child's life]." (Internal quotation marks omitted.) In re Sarah Ann K., 57 Conn.App. 441, 448, 749 A.2d 77 (2000). See In re Alejandro L., 91 Conn.App. 248, 259, 881 A.2d 450 (2005); In re Ashley S., 61 Conn.App. 658, 668, 769 A.2d 718, 718, cert. denied, 255 Conn. 950, 769 A.2d 61 (2001). First, the credible evidence in this case, presented through the TPR social study, exhibits, and the witnesses' testimony at the TPR trial, clearly and convincingly establishes that the respondent father has not achieved CGS § 17a-112(j)(3)(B) rehabilitation. The court credits the DCF reports, the exhibits and the testimony, which showed that Wayne Sr. has been unable to achieve his rehabilitation.
The clear and convincing evidence shows that Wayne Sr.'s issues are those of gross criminal recidivism, parental deficits and a failure to engage in and benefit from counseling.
The clear and convincing evidence shows that on 12/4/02, and on 12/4/03, in SCJM 2nd, (Mottolese, Sr. J.), the court ordered specific steps for Wayne Sr.
The clear and convincing evidence also indicates that, on 12/1/03, the court canvassed Wayne Sr. in open court concerning the specific steps.
The clear and convincing evidence shows that Wayne Sr. has failed to fully comply with this step.
Wayne Sr. failed to attend 3 visitations. Two of those visits were scheduled in 9/03 and 10/03.
Keep your own whereabouts known to DCF, your attorney, and the attorney for the child.
The clear and convincing evidence shows that Wayne Sr. has failed to fully comply with this step.
WS failed to maintain stable housing when at liberty. He also gave DCF personnel a false address during the pendency of this case.
Participate in parenting and individual counseling and make progress toward identified treatment goals.
The clear and convincing evidence shows that Wayne Sr. has failed to comply with this step.
On 12/9/03, Pleasant had a telephone conversation with Wayne Sr. Wayne Sr. admitted that he was overwhelmed by the specific steps, that he didn't want to comply with the steps and that he couldn't care for his son. He also stated to Pleasant that he had previously served 15 years in jail, that he couldn't handle freedom, and that he was going to return to jail.
Accept and cooperate with in-home support services referred by DCF.
The clear and convincing evidence shows that Wayne Sr. has failed to comply with this step.
On 12/9/03, Pleasant had a telephone conversation with Wayne Sr. Wayne Sr. admitted that he was overwhelmed by the specific steps, that he didn't want to comply with the steps and that he couldn't care for his son. He also stated to Pleasant that he had previously served 15 years in jail, that he couldn't handle freedom, and that he was going to return to jail.
Submit to substance abuse assessment and follow recommendations regarding treatment, including inpatient treatment if necessary, aftercare and relapse prevention.The clear and convincing evidence shows that Wayne Sr. has failed to comply with this step.
On 12/9/03, Pleasant had a telephone conversation with Wayne Sr. Wayne Sr. admitted that he was overwhelmed by the specific steps, that he didn't want to comply with the steps and that he couldn't care for his son. He also stated to Pleasant that he had previously served 15 years in jail, that he couldn't handle freedom, and that he was going to return to jail.
Submit to random drug testing: time and method of the testing shall be at the discretion of DCF.
No evidence was submitted indicating that Wayne Sr. was ever requested to submit to any substance abuse testing.
Follow recommendations of service providers: (Parole Services of the State of New York)
The clear and convincing evidence shows that Wayne Sr. has failed to comply with this step.
Wayne Sr. was involved in criminal activity in the State of Connecticut while on parole in the State of New York.
Submit to recommended service providers for parenting/individual/family counseling, in-home support services and/or substance abuse assessment/treatment:The clear and convincing evidence shows that Wayne Sr. has failed to comply with this step.
On 12/9/03, Pleasant had a telephone conversation with Wayne Sr. Wayne Sr. admitted that he was overwhelmed by the specific steps, that he didn't want to comply with the steps and that he couldn't care for his son. He also stated to Pleasant that he had previously served 15 years in jail, that he couldn't handle freedom, and that he was going to return to jail.
Cooperate with court-ordered evaluations or testing.
No evidence was submitted indicating that Wayne Sr. was ever requested to submit to any court-ordered evaluations or testing.
Sign releases authorizing DCF to communicate with service providers to monitor attendance, cooperation, and progress toward identified goals, and for use in future proceedings before this court.No evidence was submitted indicating that Wayne Sr. failed to comply with this specific step.
Secure and/or maintain adequate housing and legal income.
The clear and convincing evidence shows that Wayne Sr. has failed to fully comply with this step.
Wayne Sr. has lived a transient existence, having moved from various residences in Connecticut and New York during the pendency of this matter when he was at liberty.
Wayne Sr. indicated that he lived in a shelter during part of the pendency of this case, but DCF was unable to confirm his residency there.
He also gave DCF personnel a false address during the pendency of this case.
Wayne Sr. also lived with his niece for a period of time during the pendency of this case.
Wayne Sr. reported to DCF that he was receiving SSI benefits during the pendency of this matter.
No substance abuse.
No evidence was submitted indicating that Wayne Sr. failed to comply with this specific step.
No involvement/further involvement with the criminal justice system. Cooperate with the Office of Adult Probation or parole officer and comply with conditions of probation or parole. CT Page 9452 The clear and convincing evidence shows that Wayne Sr. has failed to comply with this step.On 12/7/03, Wayne Sr. was arrested by Norwalk Police Department after having been observed operating a stolen motor vehicle.
On 12/29/03, Wayne Sr. was arrested by Stamford Police Department after having been observed operating a stolen motor vehicle. Wayne Sr. was apprehended on the grounds of the DCF office after arriving to visit Wayne Jr.
On 4/1/05 in Superior Court, Geographical Area Twenty, Norwalk, Wayne Sr. was convicted of Larceny 2nd Degree and was sentenced to a 3-year jail term. His maximum release date is 2/3/2007.
At the time that Wayne Sr. committed these offenses, he was on parole out of the State of New York. These offenses and his conviction could violate that outstanding parole.
Consistently and timely meet and address the child's physical, educational, medical, or emotional needs, including, but not limited to, keeping the children's appointments with his/her medical, psychological, psychiatric, or educational providers.This step is not applicable as Wayne Jr. has remained in DCF care since 12/1/02.
Make all necessary child-care arrangements insuring that the child is adequately supervised and cared for by appropriate caretakers.
This step is not applicable as Wayne Jr. has remained in DCF care since 12/1/02.
Immediately advise DCF of any changes in the composition of the household to ensure that the change does not compromise the health and safety of the children.The clear and convincing evidence shows that Wayne Sr. has failed to comply with this step.
Wayne Sr. has lived a transient existence, having moved from various residences in Connecticut and New York during the pendency of this matter when he was at liberty.
Wayne Sr. indicated that he lived in a shelter during part of the pendency of this case, but DCF was unable to confirm his residency there.
He also gave DCF personnel a false address during the pendency of this case.
Wayne Sr. also lived with his niece for a period of time during the pendency of this case.
Maintain the child within the State of Connecticut during the duration of this case except for temporary travel out of state with the authorization of DCF or the Court in advance.This step is not applicable as Wayne Jr. has remained in DCF care since 12/1/02.
Cooperate with child's therapy, when/if recommended.
There is no evidence that Wayne Sr. was asked to cooperate with his child's therapy, or that Wayne Jr. was in therapy.
Visit the child as often as DCF permits.
The clear and convincing evidence shows that Wayne Sr. has failed to fully comply with this step.
Wayne Sr. failed to attend 3 visitations. Two of those visits were scheduled in 9/03 and 10/03.
This court concludes that Wayne Sr. failed to correct the factors that led to the initial commitment of his child, in as far as he is concerned. The clear and convincing evidence reveals that, from the date of commitment through the date of the filing of the TPR petition, and continuing through the time of trial, Wayne Sr. has not been available to take part in his son's life, and, based on his extensive history of criminal recidivism, transience, and his refusal to become involved with services, he will never be consistently available to Wayne Jr. The credible evidence in this case clearly and convincing shows that Wayne Sr. has been unable to be a placement resource for his child since Wayne Jr. came into DCF custody. Wayne Sr. has consistently refused all DCF offers of assistance and has failed to cooperate with all DCF referrals. He failed to establish stable housing. He failed to undertake any parenting education or counseling. He has utterly failed to avoid criminal conduct. There is no evidence that Wayne Sr. has undertaken any counseling programs in order to rehabilitate himself and assume the responsibilities of safe, responsible and nurturing fatherhood.
On 12/9/03, DCF Social Work Supervisor Pleasant had a telephone conversation with Wayne Sr. Wayne Sr. admitted that he was overwhelmed by the specific steps, that he didn't want to comply with the steps and that he couldn't care for his son. He also stated to Pleasant that he had previously served 15 years in jail, that he couldn't handle freedom, and that he was going to return to jail.
When one also considers the high level of care, patience and discipline that Wayne Jr.'s needs require from his caregiver, it is patently clear that Wayne Sr. is not in a better position to parent his child than he was at the time of Wayne Jr.'s commitment, and still remains without the qualities necessary to successfully parent him. Effectively, Wayne Sr. is no better able "to resume the responsibilities of parenting at the time of filing the termination petition than [he] had been at the time of the child's commitment." In re Hector L., 53 Conn.App. 359, 367, 730 A.2d 106 (1999). See In re Vincent D., 65 Conn.App. 658, 670, 783 A.2d 534 (2001) ("[i]n determining whether a parent has achieved sufficient personal rehabilitation, a court may consider whether the parent has corrected the factors that led to the initial commitment, regardless of whether those factors were included in specific expectations ordered by the court or imposed by the department"); see also In re Michael M., 29 Conn.App. 112, 125, 614 A.2d 832 (1992); In re Migdalia M., 6 Conn.App. 194, 206, 504 A.2d 533, cert. denied, 199 Conn. 809, 508 A.2d 770 (1986).
Wayne Sr.'s propensity towards criminal behavior is a most disturbing aspect of his behavior, as it relates to rehabilitation and Wayne Jr.'s wellbeing. He has a criminal record which dates back 36 years. He has spent much of his adult life in correctional facilities, including a 15-year sentence in the State of New York. He is on parole for the rest of his life out of New York, where he owes a life sentence. Yet the clear and convincing evidence shows that, within 1 month of the court ordering specific steps, Wayne Sr. was involved in 2 separate felonious episodes. He was subsequently convicted of the 12/7/03 motor vehicle larceny and was sentenced to a jail term.
This rash and brazen criminal recidivism, committed while on a lifetime parole term, and committed after having been released from jail only 4 months previously, speaks volumes as to the respondent father's failure to rehabilitate himself
Even if Wayne Sr. was finally capable of realizing and correcting his problems, it would be exceedingly rash to expect him to be able to parent his child at any time in the near future, if ever.
Wayne Sr.'s future must be determined in the State of New York, where he faces parole violation charges. His guilty plea in his Norwalk motor vehicle larceny case will obviously weigh heavily against him. He owes New York the rest of his life. It is unknown how long he will remain incarcerated in New York after he finishes his Connecticut sentence on 2/3/07.
The clear and convincing evidence indicates that criminal activity has been a way of life for Wayne Sr., and he shows little or no inclination to change himself for the better, or to change himself in order to be a safe, nurturing and responsible parent for his child.
Clearly, for Wayne Sr. to be seriously considered to be a viable reunification resource for his son, even if he wanted to be so considered, he would have to successfully complete various referrals and programs designed to aid in his rehabilitation. He would need to establish himself in the community and show, over a substantial period of time, that he has conquered the demons which have plagued him and resolved his outstanding issues. He would have to obtain appropriate housing and income, as well as an appreciation of safe, responsible and nurturing parenting skills before reunification could be contemplated. Most importantly, Wayne Sr. would have to abstain from all criminal recidivism and show that he could remain crime-free over a substantial period of time. Unfortunately, the clear and convincing evidence shows that Wayne Jr.'s need for permanence and stability would not allow for the time necessary for Wayne Sr. to attempt rehabilitation, even if he wished to do so, and/or were capable of doing so.
Additionally, Wayne Sr. would have to accomplish his reunification when he completes both his Connecticut and New York sentences.
Given the age, sensibilities and needs of the child involved, and given Wayne Sr.'s failure and/or inability to correct his deviancies, it would be unreasonable to conclude that he would be able to achieve rehabilitation from his various issues so as to be able to serve as a safe, responsible and nurturing parent within a reasonable time.
Wayne Jr. needs a parent/parents who are able to effectively care for him now. Wayne Jr. cannot wait for the remote possibility that his biological father might overcome his issues, finish his jail terms, remain crime-free and acquire sufficient parenting ability to care for him one day. Wayne Jr. is unable to wait for Wayne Sr. to show that he has rehabilitated himself and is ready to assume his parental role. It is fundamental that "in assessing rehabilitation, the critical issue is not whether the parent 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." (Internal quotation marks omitted.) In re Amneris P., 66 Conn.App. 377, 384, 784 A.2d 457 (2000).
The clear and convincing evidence in this case shows that Wayne Sr. lacks the ability to manage both his own life, as well as the life of Wayne Jr.
Accordingly, based on the clear and convincing evidence presented in this case, the court finds that the petitioner has proved that Wayne Sr. failed to achieve rehabilitation pursuant to CGS § 17a-112(j)(3)(B).
In making this assessment, the court has reviewed the past and present status of the child at issue and assessed the parenting abilities of the parent from a historical perspective, in reaching its conclusion by clear and convincing evidence. In re Tabitha P., 39 Conn.App. 353, 361, 664 A.2d 1168 (1995).
In making this assessment, the court incorporates, by reference, the previous information in this decision concerning Wayne Sr. and his son.
Continued foster care is detrimental to Wayne Jr.'s development; he requires a permanent home which is safe and nurturing. Based on all the facts presented in this case, the court finds that it is not foreseeable that Wayne Sr. is capable of rehabilitation within a reasonable time. In re Daniel C., supra, 63 Conn.App. 354. In reaching this conclusion, the court has analyzed the respondent father's parenting deficits as they relate to his child's need for a safe, responsible and nurturing parent who can meet Wayne Jr.'s requirements and needs for emotional stability, security and consistency.
The court finds, by clear and convincing evidence, that to allow Wayne Sr. further time to rehabilitate himself, if that were possible, and to assume a responsible position in the life of his son, would not be in the best interests of Wayne Jr.
LACK OF ONGOING PARENT-CHILD RELATIONSHIP-CGS § 17a-112(j)(3)(D)
The State has alleged that there is no on-going parent/child relationship between Wayne Sr. and Wayne Jr. This means that, based on the evidence produced, the relationship that ordinarily develops as a result of a parent having met, on a day-to-day basis, the physical, emotional, moral and educational needs of the child has not been established and to allow further time for the establishment of such parent/child relationship would be detrimental to the best interests of the child. CGS § 17a-112(j)(3)(D). Applying the requisite legal standards, and complying with § 17a-112(q), the court finds this matter in favor of the petitioner State of Connecticut and DCF.
CGS § 17a-112(j)(3)(D) provides for the termination of parental rights "where there is no on-going parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day-to-day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child . . ."
CGS § 17a-112(j)(3)(D) "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 on-going 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." (Internal quotation marks omitted.) In re Brea B., 75 Conn.App. 466, 470, 816 A.2d 707 (2003).
The clear and convincing evidence presented indicates the following;
Wayne Sr. has never had sole custody of Wayne Jr. Wayne Sr. was incarcerated when Wayne Jr. was born, and has only been at liberty for approximately 3 months of his son's life.
Wayne Sr. has not provided any support for Wayne Jr. since he has been in the custody of DCF.
The clear and convincing evidence indicates that Wayne Jr.'s visits with his biological father have been problematic. Wayne Jr. does not enjoy attending the visits and becomes upset when he has to go see Wayne Sr. He sits down, cries and says "No Wayne." When the social worker went to pick him up for a visit Wayne Jr. ran away and attempted to hide. He also tried to induce the social worker to take another child from his daycare to the visit instead. Although there was some testimony that Wayne Jr. has enjoyed some aspects of the visits, the clear and convincing evidence also shows that after the visits, Wayne Jr. returns to the foster home in an agitated state, in a bad mood and not in his normal disposition.
The clear and convincing evidence shows that Wayne Sr. has been unable and/or unwilling to adjust his circumstances to allow for his child to be returned to his care.
The clear and convincing evidence indicates that Wayne Jr. exhibits no bond or affection toward Wayne Sr. and does not recognize him as his father. The clear and convincing evidence shows no evidence of Wayne Jr. possessing any present and positive memories of his father. He does not seek comfort from Wayne Sr. or go to Wayne Sr. to have his needs met.
The clear and convincing evidence indicates that Wayne Jr. has bonded to the foster parents and recognizes them as his parents. He seeks comfort from the foster parents and goes to them to have his needs met.
In In re Valerie D., 223 Conn. 492, 516, 613 A.2d 748 (1992), the Supreme Court held that the state was not permitted to terminate on the ground of no ongoing relationship when it asserted and maintained custody over the child immediately after birth, which led directly to the condition of no parent/child relationship. However, In In re Alexander C., 67 Conn.App. 417, 420, 787 A.2d 608 (2001), aff'd, 262 Conn. 308, 813 A.2d 87(2003), the Appellate Court affirmed a termination where the father created the circumstances that caused the lack of a relationship with his child. The court explained:
Thus, as we now will set forth, the similarity between In re Valerie D. and the present case begins and ends with the child's being placed in foster care within days of birth. Here, the respondent, rather than the [state], created the circumstances that caused and perpetuated the lack of an ongoing relationship between the respondent and A . . . It was the respondent's action, which resulted in his incarceration, that occasioned his separation from the child. The court entered and continued a protective order in light of the a]legations of [the respondent's] sexual and physical abuse of A's sibling. It is unclear from the record whether the respondent — contested those allegations on the civil side of the court. The determination of no ongoing parent-child relationship in the termination proceedings was not based on the allegations to which the respondent had pleaded nolo contendere. That determination was based on [his] resultant incarceration and the absence of the respondent from A's life.
Id., 424.
The court finds that In re Valerie D. is inapplicable in this case. The proximate cause of Wayne Sr.'s lack of an ongoing relationship with his son was clearly caused by his incarceration. The responsibility for these incarcerations can be attributed to but one person-Wayne Sr. When Wayne Sr. engaged in the criminal conduct that resulted in his conviction in New York for Larceny, he was already a convicted felon who had previously been on probation and had served jail time. Obviously, he was aware of the possibility that he might be returned to jail if he committed new crimes and/or engaged in acts that violated his New York parole. Yet, despite the risks, he rashly committed technical violations of his parole, as well as new criminal acts. His resulting imprisonment, the separation from his son, and the lack of relationship with his son were risks that he assumed.
Wayne Jr. has been in foster placement with the same family since 12/5/03. He needs safe, committed, responsible and firm caretakers. The respondent father's longstanding issues, combined with his obvious inability to develop a viable plan for the care of this child, demonstrates his lack of capacity to develop an appropriate parental relationship with his son.
Obviously, Wayne Jr. needs a family now, not later. To allow further time for Wayne Sr. to establish a parent/child relationship would be detrimental to the best interests of this child. Accordingly, based on the clear and convincing evidence presented in this matter, and applying the appropriate legal standards, the court finds that there is no ongoing parent-child relationship between Wayne Sr. and his son Wayne Jr.
With regard to the allegations of no on-going parent/child relationship, the court has also considered the evidence and testimony related to circumstances occurring through the close of trial for adjudicatory purposes; See Practice Book § 35a-7 (commentary).
To allow further time for Wayne Sr. to establish a parent/child relationship would be detrimental to Wayne Jr.'s best interests. Accordingly, based on the clear and convincing evidence presented in this matter and applying the appropriate legal standards, the court finds that there is no ongoing parent-child relationship between Wayne Sr. and Wayne Jr.
The court incorporates, by reference, all previous reasonable efforts findings.
DISPOSITION
As the court has concluded that statutory grounds for termination exist it next "must determine whether termination is in the best interests of the child." (Internal quotation marks omitted.) In re Jermaine S., supra, 86 Conn.App. 827; see also In re Valerie D., supra, 223 Conn. 511 and n. 15. In this dispositional phase the court has considered the evidence and testimony related to circumstances and events through the close of evidence. Practice Book § 35a-9.
SEVEN STATUTORY FINDINGS
`The court has made each of the seven written factual findings required by CGS § 17a-112(k) based upon the clear and convincing evidence presented at trial, and has considered the evidence relevant to each of these findings in deciding whether to terminate the respondent father's parental rights. See In re Jermaine S., supra, 86 Conn.App. 835.
The court limited its findings to the respondent father Wayne Sr., based upon the respondent mother Guadalupe's consent to the TPR.
TIMELINESS, NATURE AND EXTENT OF SERVICES — CGS § 17a-112(k)(1)
The State proved by clear and convincing evidence that DCF provided the following services to the respondent father Wayne Sr., or that the following services were provided to him:
DCF: case management services, visitation.
Individual counseling.
Intensive Family Preservation: in-home support services.
Parenting classes.
Paternity testing.
Considered carefully, the clear and convincing evidence shows that DCF offered timely, appropriate and comprehensive services to the respondent father Wayne Sr. to facilitate his reunification with his child and made reasonable efforts to reunite him with his child. In re Victoria B., 79 Conn.App. 245, 258-60, 829 A.2d 855 (2003). The clear and convincing evidence indicates that Wayne Sr. failed to utilize these services and gain any appropriate benefit from these services.
Based on this clear and convincing evidence of the circumstances now present in this case, the court finds that Wayne Sr. is unable and/or unwilling to benefit from reasonable reunification efforts as far as Wayne Jr. is concerned. CGS § 17a-112(j)(1). His serious issues clearly and convincingly made him unable and/or unwilling to benefit from reasonable reunification efforts with Wayne Jr. in a timely manner. In re Tyqwane K., 85 Conn.App 528, 535-36, 857 A.2d 963 (2004).
The court further finds that the clear and convincing evidence presented in this case indicates that Wayne Sr. was aware of his issues and deficits and had received specific steps addressing said issues. The court also finds that he was aware of his criminal recidivism issues for years prior to Wayne Jr.'s birth as a result of his extensive criminal history, which dated back to 1970, and was aware that further criminal activity would result in further incarceration and more separation from his child. The clear and convincing evidence shows that Wayne Sr. told DCF Social Work Superior Pleasant that he didn't want to comply with the specific steps, in fact failed to comply with most of the steps. The clear and convincing evidence shows that, despite having knowledge of the nature of his issues, Wayne Sr. remained unable and/or unwilling to benefit from reasonable reunification services with Wayne Jr.
The court will incorporate, by reference, all reasonable efforts findings previously made that are listed above in this decision.
This court also finds by clear and convincing evidence that further efforts at reunification are not appropriate for Wayne Sr. with regard to his son.
REUNIFICATION EFFORTS PURSUANT TO FEDERAL LAW — CGS § 17a-112(k)(2) CT Page 9462
This court finds that the clear and convincing evidence in this matter proves that Wayne Sr. is presently unable and/or unwilling to benefit from such reunification services as are contemplated by the federal Adoption Assistance and Child Welfare Act of 1980, as amended.Considered carefully, the clear and convincing evidence in this matter shows that DCF made reasonable efforts to reunify Wayne Sr. with Wayne Jr. In re Antonio M., supra, 56 Conn.App. 547; see also In re Sheila J., 62 Conn.App. 470, 478-79, 771 A.2d 244 (2002).
The court further finds that the clear and convincing evidence presented in this case indicates that Wayne Sr. was aware of his issues and deficits and had received specific steps addressing said issues. However, the clear and convincing evidence also shows that, despite this notification, he remained unable and/or unwilling to benefit from reasonable reunification services.
The court will incorporate, by reference, all reasonable efforts findings previously made that are listed above in this decision.
This court also finds by clear and convincing evidence that further efforts at reunification are not appropriate for Wayne Sr. with regard to Wayne Jr.
Based on the clear and convincing evidence of the circumstances present in this case, the court finds that Wayne Sr. is unable and/or unwilling to benefit from reasonable reunification efforts. C.G.S. § 17a-112(j)(1). His serious issues clearly and convincingly make bin unable and/or unwilling to benefit from reasonable reunification efforts. In re Tyqwane K., supra, 85 Conn.App 535-36. See In re Daniel C., supra, 63 Conn.App 367-68.
COMPLIANCE WITH COURT ORDERS — CGS § 17a-112(k)(3)
The clear and convincing evidence shows that, on 12/4/02, and on 12/4/03, in SCJM 2nd (Mottolese, Sr. J.), the court ordered specific steps for Wayne Sr. The clear and convincing evidence also indicates that on 12/4/03, the court canvassed Wayne Sr. in open court concerning the specific steps.
The court incorporates, by reference, its previous findings made in this decision concerning the respondent father's compliance with the specific steps.
The clear and convincing evidence indicates that Wayne Sr. has failed to comply with most of the steps ordered by the court.
THE CHILD's FEELINGS AND EMOTIONAL TIES — CGS § 17a-112(k)(4)
The clear and convincing evidence indicates that Wayne Jr. exhibits no bond or affection toward Wayne Sr. and does not recognize him as his father. The clear and convincing evidence shows no evidence of Wayne Jr. possessing any present and positive memories of his father. He does not seek comfort from Wayne Sr. or go to Wayne Sr. to have his needs met. It is only with substantial effort that Wayne Jr. will go to him at all.
The clear and convincing evidence indicates that Wayne Jr.'s visits with his biological father have been problematic. Wayne Jr. does not enjoy attending the visits and becomes upset when he has to go see Wayne Sr. He sits down, cries and says "No Wayne." When the social worker went to pick him up for a visit, Wayne Jr., ran away and attempted to him. He also tried to induce the social worker to take another child from his daycare to the visit instead. Although there was some testimony that Wayne Jr. has enjoyed some aspects of the visits, the clear and convincing evidence also shows that, after the visits, Wayne Jr. returns to the foster home in an agitated state, in a bad mood and not in his normal disposition.
The clear and convincing evidence indicates that Wayne Jr. has bonded to the foster parents and recognizes them as his parents. He seeks comfort from the foster parents and goes to them to have his needs met.
AGE OF THE CHILD — CGS § 17a-112(k)(5)
Wayne Jr. was born on 9/16/02, and is 44 months old.
PARENT'S EFFORTS TO ADJUST HIS CIRCUMSTANCES — CGS § 17a-112(k)(6)
The court finds by clear and convincing evidence that Wayne Sr. is unable and/or unwilling to make realistic and sustained efforts to conform his conduct to acceptable parental standards. Although DCF has referred him to rehabilitative services during this case, the clear and convincing evidence indicates that he refused to participate in any referrals. Additionally, the clear and convincing evidence shows that during the pendency of this matter.
The clear and convincing evidence indicates that on 12/9/03, DCF Social Work Supervisor Pleasant had a telephone conversation with Wayne Sr. Wayne Sr. admitted that he was overwhelmed by the specific steps, that he didn't want to comply with the steps and that he couldn't care for his son. He also stated to Pleasant that he had previously served 15 years in jail, that he couldn't handle freedom, and that he was going to return to jail.
The clear and convincing evidence shows that Wayne Sr. has failed to undertake any parenting counseling in order to allow him to care for Wayne Jr. DCF made referrals and recommendations to Wayne Sr. concerning parenting counseling, but he failed to comply.
The clear and convincing evidence shows that Wayne Sr. has continued to engage in criminal conduct through the pendency of this case.
On 12/7/03, Wayne Sr. was arrested by Norwalk Police Department after having been observed operating a stolen motor vehicle.
On 12/29/03, Wayne Sr. was arrested by Stamford Police Department after having been observed operating a stolen motor vehicle. Wayne Sr. was apprehended on the grounds of the DCF office after arriving to visit Wayne Jr.
On 4/1/05 in Superior Court, Geographical Area Twenty, Norwalk, Wayne Sr. was convicted of Larceny 2nd Degree and was sentenced to a 3-year jail term. His maximum release date is 2/3/2007.
At the time that Wayne Sr. committed these offenses, he was on parole out of the State of New York. These offenses and his conviction could violate that outstanding probation. He remains incarcerated for the foreseeable future, and remains on parole on a life sentence for the rest of his days.
The clear and convincing evidence shows that Wayne Sr., while at liberty, failed to obtain appropriate housing, and attempted to deceive DCF concerning his housing. The clear and convincing evidence shows that despite DCF's best efforts, Wayne Sr. is unable and/or unwilling to take the steps necessary in order to even attempt to become a safe, nurturing and responsible parent for his child. The evidence at the TPR trial clearly and convincingly shows that he fails to understand the effects that his criminal recidivism and parental shortcomings and deficiencies have had on Wayne Jr. He is obviously unable to care for his son appropriately and to provide the child with the safety, care, permanence and stability that the child needs and deserves.
The court finds by clear and convincing evidence that Wayne Sr. has not made the changes necessary in his lifestyle that would indicate that he would be a safe, responsible and nurturing parent for Wayne Jr.
The court finds, by clear and convincing evidence, that to allow Wayne Sr. further time to rehabilitate himself if that were possible, and to assume a responsible position in Wayne Jr.'s life would not be in the best interests of Wayne Jr.
EXTENT TO WHICH THE PARENTS WERE PREVENTED FROM MAINTAINING A RELATIONSHIP WITH THE CHILD — CGS § 17a-112(k)(7)
This court finds by clear and convincing evidence that no unreasonable conduct by DCF, foster parents, DOC, Parole Service, State of New York or third parties prevented Wayne Sr. from maintaining a relationship with Wayne Jr., nor did Wayne Sr.'s economic circumstances prevent such relationships, although the limitations and restrictions inherent in the foster care system remained in effect.
BEST INTERESTS OF THE CHILD — CGS § 17a-112(j)(2)
The court is next called upon to determine whether termination of the parental rights of Guadalupe or Wayne Sr. would be in Wayne Jr.'s best interests. Applying the appropriate legal standards to the clear and convincing facts of this case, the court finds this issue in favor of the State of Connecticut and DCF.
The final element of the termination of parental rights statute, § 17a-112(j), requires that before granting a duly noticed petition for such termination, the court must find, "by clear and convincing evidence . . . (2) that termination is in the best interest of the child . . ."
"Termination of parental rights means the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and the child's parent or parents . . . Termination of parental rights is a most serious and sensitive judicial action. In re Barbara J., 215 Conn. 31, 44, 574 A.2d 203 (1990)." (Citation omitted, internal quotation marks omitted.) In re Steven N., 57 Conn.App. 629, 632, 749 A.2d 678 (2000). "[T]he question . . . to be decided in a dispositional phase is whether it is in the best interests of the child to sever the parent-child relationship. That is different from the question of who should have custody of the child if termination of parental rights is determined to be in the best interests of the child. See Practice Book § 33-5." (Internal quotation marks omitted.) In re Carissa K., 55 Conn.App. 768, 776, 740 A.2d 896 (1999). "In making this determination, the trial court can consider all events occurring prior to the date of the dispositional hearing, including those occurring after the filing of the termination petition." (Internal quotation marks omitted.) In re Kasheema L., 56 Conn.App. 484, 488, 744 A.2d 441, cert. denied, 252 Conn. 945, 747 A.2d 522 (2000).
In determining whether termination of Guadalupe or Wayne Sr.'s parental rights would be in Wayne Jr.'s best interests, the court has examined multiple relevant factors, including the child's interests in sustained growth, development well-being, stability and continuity of his environment; his length of stay in foster care; the nature of his relationship with his foster parents and his biological parents; and the degree of contact maintained with his biological parents. 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); In re Savanna M., 55 Conn.App. 807, 816, 740 A.2d 484 (1999). In a matter such as this, the court is further called upon to balance the child's intrinsic needs for stability and permanency against the benefits of maintaining a connection with his biological parents. See Pamela B. v. Ment, 244 Conn. 296, 314, 709 A.2d 1089 (1998) (child's physical and emotional well-being must be weighed against the interest in preserving family integrity).
"[T]he genetic bond shared by a biological parent and his or her child, although not determinative of the issue of the best interest of the child, is certainly a factor to consider." (Internal quotation marks omitted.) In re Savanna M., 55 Conn.App. 807, 816, 740 A.2d 484 (1999).
Under such scrutiny, the clear and convincing evidence in this matter establishes that it is not in Wayne Jr.'s best interests to continue to maintain any legal relationship with either respondent parent.
Guadalupe has consented to the termination of her parental rights as to Wayne Jr.
The clear and convincing evidence shows that Guadalupe has numerous issues which are clearly antithetical to safe, responsible and nurturing parenting, and are also antagonistic to Wayne Jr.'s best interests.
Guadalupe has substance abuse issues. Those issues have not been satisfactorily resolved.
At the time of the trial, she was in the custody of the Department of Corrections (DOC)/Parole Services, and was assigned to the Mary Magdalene Halfway House. Obviously, her status as a parolee indicates a greater uncertainty and/or instability as to her future. The smallest violation, even one of a technical nature, could relegate her to incarceration.
Dr. Mantell opined that Guadalupe's chances of rehabilitation were poor.
Guadalupe has 3 children; none of her children are in her custody.
The clear and convincing evidence shows that Guadalupe cannot keep Wayne Jr. safe and cannot care for him properly. The clear and convincing evidence also shows that Guadalupe has failed to gain insight into the efforts that she needs to make in order to become a safe, nurturing and responsible parent for her child. The clear and convincing evidence shows that her judgment and conduct still remain questionable, and have not improved since Wayne Jr. was taken into DCF care and custody.
The clear and convincing evidence shows that Wayne Sr. has not made even minimal efforts towards rehabilitation.
Wayne Sr. has been mired in a pattern of criminal recidivism which dates back to his formative years. His refusal to live a responsible, law-abiding existence, has clearly blighted his life and reduced him to being unable to live outside the structure and discipline of a correction facility. Unfortunately, his issues have also devastated his ability to be a safe, responsible and nurturing parent to Wayne Jr.
Wayne Sr. was incarcerated when his son was born. He was only at liberty for approximately 3 months during his son's young life. Unfortunately, Wayne Sr.'s propensity towards criminality took him away from his son at a time when the child needed a parent's basic care and shelter. The respondent mother was unable to supply these basics; nor was Wayne Sr.
During his brief period of liberty, Wayne Sr. was unable to remain free of the entanglements of the criminal life. In 12/03, he engaged in felonious criminal activity that eventually resulted in his being returned to close custody. He rashly chose to commit these acts despite the fact that he owed the State of New York a jail term equal to the rest of his life.
As a result of his criminal recidivism, Wayne Sr. has been unable to establish a relationship with Wayne Jr. The decision to engage in this criminal behavior was solely Wayne Sr.'s, and no one else's responsibility. Unfortunately, the clear and convincing evidence shows that Wayne Sr. still fails to comprehend the true import of his conduct. During his testimony, Wayne Sr. described his 15-year to life sentence as "a bad break," instead of what it was, a reflection upon, and a response to, many years of serious felonious activity. Unfortunately for Wayne Jr., this attitude is reflective of the situation that the respondent father finds himself in today, incarcerated and facing a return to the jails of New York to serve more time toward his life sentence.
The clear and convincing evidence also shows that Wayne Sr. has failed to gain insight into the efforts that he needs to make in order to become a safe, nurturing and responsible parent for his son. The clear and convincing evidence shows that his judgment and conduct still remain questionable, and have not improved since Wayne Jr. was taken into DCF care.
The clear and convincing evidence shows that Wayne Jr. cannot afford to wait any longer for Wayne Sr. to rehabilitate himself. Wayne Sr. has been given more than ample time to accomplish this, without success.
The clear and convincing evidence shows that the time that the respondent parents need to attempt to rehabilitate themselves and to attempt to establish themselves in the community as safe, nurturing and responsible parents, if that were possible, is time that Wayne Jr. cannot spare.
Guadalupe and Wayne Sr.'s individual parental performances clearly and convincingly show that each one lacks the attributes and characteristics necessary to fulfill a valid parental role.
Their individual failures to address their issues in a timely manner and their individual failures to successfully address their individual parental deficits clearly and convincingly show that it is unlikely that either Guadalupe or Wayne Sr. will ever be able to conform her or his behaviors to appropriate parental standards or be able to serve as a safe, nurturing and responsible parent for Wayne Jr.
Based upon Guadalupe and Wayne Sr.'s individual behaviors and performances so far, this court cannot foresee either respondent parent in this case ever having the ability or the patience to follow the regimen necessary for Wayne Jr. to maximize his abilities and achievements.
The child's attorney indicated that the TPR of Guadalupe and Wayne Sr. would be in his client's best interests.
Wayne Sr. argued that the TPR should not be granted. He testified that he did have a relationship with Wayne Jr., that DCF had defamed his name, that he would be released in New York soon, and that he could be a good role model for his son. He admitted that the foster parents provided good care for Wayne Jr., and that he was estranged from his daughter Dawn, due to his having let her down. He indicated that if the court granted the TPR, Wayne Jr. would grow up and be estranged from him as well.
At final argument, Wayne Sr. indicated that he would take advantage of programs in the New York correctional system, that DCF refused to listen to his proposition of placing Wayne Jr. with his relatives in Florida, that he would be paroled with 6 months to 1 year in New York, and that he had not been given a chance during his 4 months of freedom. He concluded by indicating that he was a changed man, and he could start over again.
Unfortunately, the clear and convincing evidence indicates that it would be extremely rash to place Wayne Jr.'s life, development and wellbeing in the responsibility of his biological father. This court finds that Wayne Sr.'s representations and claims are an insufficient basis on which to risk a 3-year-old child's health, emotional wellbeing and future achievements.
Additionally, despite Wayne's reassurances, there is no indication when Wayne Sr. will be released from the State of New York. The uncertainty of his availability for his son is another fact in the best interests assessment.
As previously pointed out, it is fundamental that "in assessing rehabilitation, the critical issue is not whether the parent 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." (Internal quotation marks omitted.) In re Amneris P., supra, 66 Conn.App. 384.
The issues that Wayne Sr. presented with in 2003 remain unchanged and not improved. The court finds, by clear and convincing evidence, that allowing Wayne Sr. further time in which to rehabilitate himself will not result in Wayne Sr. utilizing the time or the services to effect positive changes so he can serve as a safe, responsible and nurturing parent to Wayne Jr. He has already been given that opportunity, and has nothing to show for it.
Wayne Jr. has been in foster care for 41 months. He needs stability, nurturing and permanence in a home with caregivers who are not beset by overwhelming substance abuse issues, mental health issues, gross parenting deficits, or criminal recidivism problems.
What is certain is that any further delay in permanency and stability will only worsen Wayne Jr.'s situation, and that he can wait for these necessities no longer.
Our courts have recognized that "long-term stability is critical to a child's future health and development . . ." In re Eden F., 250 Conn. 674, 709, 741 A.2d 873 (1999). Furthermore, "[b]ecause of the psychological effects of prolonged termination proceedings on young children, time is of the essence" when resolving issues related to the permanent or temporary care of neglected children. In re Alexander V., 25 Conn.App. 741, 748, 596 A.2d 934 (1991), aff'd, 223 Conn. 557, 613 A.2d 780 (1992); see also In re Juvenile Appeal (84-CD), 189 Conn. 276, 292, 455 A.2d 1313 (1983). The court is obliged to agree with the child's attorney and DCF and concludes that the clear and convincing evidence in this case establishes that Wayne Jr. is entitled to the benefit of ending, without further delay, the period of uncertainty as to the availability of his biological parents as caretakers.
The State and DCF have recommended the TPR of Wayne Jr. There has been absolutely no evidence to establish the unreasonableness of this request.
Having balanced Wayne Jr.'s individual and intrinsic needs for stability and permanency against the benefits of maintaining a connection with Guadalupe or Wayne Sr., the clear and convincing evidence in this case establishes that the child's best interests cannot be served by continuing to maintain any legal relationship to the respondent parents. Pamela B. v. Ment, supra, 244 Conn. 313-14.
Accordingly, with respect to the best interests of the child as contemplated by § 17a-112(j)(2), by clear and convincing evidence, and based upon all of the foregoing, including the testimony and evidence presented, the court finds that termination of the parental rights of Guadalupe and Wayne Sr. as to Wayne Jr. is in the best interests of the child in question.
ORDER OF TERMINATION
WHEREFORE, after due consideration of Wayne Jr.'s sense of time, his need for a secure and permanent environment, the relationship he has with his foster parents, and the totality of circumstances; and having considered all the statutory criteria and having found by clear and convincing evidence that grounds exist for termination of parental rights; and having concluded that the termination of the parental rights at issue will be in the child's best interests, the court issues the following ORDERS:
That the parental rights of Guadalupe C. are hereby terminated as to the child Wayne G., Jr.
That the parental rights of Wayne G., Sr. are hereby terminated as to the child Wayne G., Jr.
That the Commissioner of the Department of Children and Families is hereby appointed the statutory parent for Wayne Jr. for the purpose of securing an adoptive family or families, or other permanent placement for him.
That a permanency plan shall be submitted within 30 days of this judgment, and that such further reports shall be timely presented to the court, as required by law.