Opinion
H12CP15016138A
03-10-2017
In re Zykell Y. [1]
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Michael R. Dannehy, J.
This case presents a petition by the Department of Children and Families (DCF) seeking to terminate the parental rights Taneka Y. and John Doe to their child, Zykell Y., who was born on August 19, 2015.
On September 20, 2016, DCF filed a petition to terminate parental rights. The parents were properly served. Mother appeared in court and was appointed counsel. Father did not appear and a default judgment entered against him.
The statutory grounds alleged in the petition against the mother were that the child had been found in a prior proceeding to have been neglected, and that as a parent, she had failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the age and needs of the child, she could assume a responsible position in the life of the child. C.G.S. 17a-112(j)(3)(B)(i) as well as C.G.S. 17a-112(j)(3)(E) adds the factors that the child is under seven years old and that the parent's rights to another child have been terminated.
Prior to the commencement of the trial, the court determined that the respondent mother was not competent. She was born with fetal alcohol syndrome. Psychological testing indicates that she has an IQ of 46. She thinks in a very concrete fashion and has both short-term and long-term memory deficits. She has difficulty learning and retaining relevant information. Given the severity and duration of her intellectual impairment, her competency cannot be restored. Therefore, a guardian ad litem was appointed for her.
In making its decision to proceed to trial and to grant no further continuances for mother to regain her competency, the court reviewed the case of In re Alexander V., 223 Conn. 557, 564, 613 A.2d 780 (1993). In examining the implications of due process, our Supreme Court found that " there is a cognizable risk that a parent unable to assist his or her attorney or to understand the proceedings might suffer an erroneous termination of parental rights regardless of whether a guardian ad litem has been appointed pursuant to Connecticut General Statutes § 45a-708(a)." In re Alexander V., supra, 563. In weighing that risk, the court had reviewed the procedural safeguards set forth in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), to provide assistance in the decision to proceed with the trial. As previously found, in the case of In re Aida M. and Carmelo O., Superior Court for Juvenile Matters, H12-CP96-000640, and H12-CP96-00064, (March 25, 1997, Foley, J.), the court concludes that the multi-factored balancing test set forth in Mathews must be considered to ensure that all due process rights of the incompetent parent have been addressed before proceeding to a trial on the merits. It is an effort to balance the interests of the incompetent mother in maintaining her family, free of coercive state interference, with the interest of the child's right to a safe and healthy childhood. The four concerns articulated in Mathews are:
1. " Is it likely that the evidence presented could be refuted by a competent parent?" In this case, there is clear and convincing evidence of failure to rehabilitate. The evidence was consistent and compelling that mother lacks the ability to safely parent this child.
2. " Whether the parent could be restored to competence within a reasonable time, considering the age and needs of the child?" The evaluator was of the opinion that due to the depth and persistence of the respondent's cognitive impairments that no intervention could restore her to competency.
3. " If the mother were competent, is there proof of the existence of or prospect of an existing parent-child relationship?" There is minimal evidence that a parent-child relationship exists but due to mother's limitations, as well as a substance abuse issue, she will never be able to safely parent this child.
4. " Was the respondent mother effectively represented by counsel and the guardian ad litem, given the difficulties attendant to such representation?" In this case, prior to the date scheduled for trial, the guardian ad litem met with the respondent and her attorney to develop a trial strategy.
The guardian also filed a trial memorandum supporting the mother. He attended the trial and conferred with mother and the attorney for mother.
The court concludes that all of the factors to be considered by the court under a Mathews analysis support proceeding to trial. The likelihood of an erroneous termination decision is slight in view of the overwhelming evidence establishing the failure to rehabilitate. It is also greatly outweighed by the child's needs and the opportunity for counsel and her guardian to prepare for the trial. The court concludes that the due process protections to which mother is entitled have been provided to her in the conduct of this trial. Permitting any further delay will not necessarily result in any further improvement in mother's condition and the child's best interests require the court to proceed without further delay.
The matter was tried to the court on March 6, 2017. The respondent mother was present and was represented at trial by counsel as well as a guardian ad litem. Also present were attorneys for DCF and the child. The attorneys were given the opportunity to cross examine witnesses as well as to call witnesses and present evidence. The petitioner offered eight exhibits. The court also took judicial notice of several items. The child's attorney and mother's attorney did not present evidence.
The court finds that it has proper jurisdiction of the matter and that there are no pending actions affecting the custody of the minor child. The court has carefully considered the petition, all of the evidence and testimony presented, and the arguments of counsel, according to the standards required by law. On the basis of the evidence presented and for the reasons stated below, the courtfinds in favor of the petitioner and hereby terminates the parental rights of the respective mother.
FACTS
The court finds the following facts by clear and convincing evidence.
Zykell Y. was born on August 19, 2015. He was removed from his mother's care on August 22, 2015, through a 96-hour hold before leaving the hospital. He was placed with his current foster family. An ex parte OTC was issued four days later and sustained by the court on August 26, 2015. On April 27, 2016, Zykell Y. was adjudicated neglected and committed to the Department of Children and Families (DCF). The Petition to Terminate Parental Rights was filed on September 20, 2016.
DCF became involved shortly after the child's birth. They were contacted by a hospital social worker who had concerns about mother's ability to care for the child. The concerns were based on mother's limited cognitive abilities, her history with the Department, substance abuse, and living arrangements. Mother's parental rights were terminated to three other children through the Hartford Juvenile Court pursuant to petitions filed by DCF. Her rights to two children were terminated on June 13, 2005 and her rights to a third child were terminated on. September 18, 2007.
Mother has struggled with substance abuse throughout her life. DCF records indicate that mother was using crack cocaine in 2000. She disclosed that she was smoking cocaine, marijuana and drinking " Loco" daily prior to learning she was pregnant with Zykell Y. in April 2015. Testing showed that she abstained from using these substances for a period of time. DCF referred her to treatment programs after Zykell Y.'s birth and eventually she successfully completed The Wheeler Clinic program. In July 2016, drug testing revealed that she was using cocaine. She was referred again to Wheeler Clinic but was discharged because of sporadic attendance. The last drug screen taken at the end of November 2016 was positive for cocaine.
Mother relies on Social Security Disability, Cash Assistance and food stamps. She informed DCF that she has no intention of seeking employment because that would result in a reduction of the aid she is receiving. A cousin has been designated as her payee and attends to her bills and provides mother with a monthly allowance. Mother shares an apartment with her sister and claims she is unable to locate alternative housing even though she expresses concerns about the living arrangements, indicating arguments with her sister, her sister's use of PCP, numerous people in and out of the apartment as well as cockroaches and uncleanliness. Mother is also involved with Fred G. who has a history of felony convictions and is on probation for Driving under the Influence.
Mother self-referred to a parenting program, " The Baby Academy" and received a certificate of completion. It should be noted that the provider never observed mother caring for Zykell Y. If she had observed mother's visits with Zykell Y. she would have realized that mother received little benefit from the program. Mother was initially provided with two DCF supervised visits per week which were reduced to one a week after mother failed to visit consistently. She is also allowed to visit at the foster parents' home as she has a long-standing relationship with them. When she fails to attend visitation she provides excuses such as: it is raining, she has errands, she is too tired or she has no transportation despite having a DCF-issued bus pass. When she does attend she demonstrates limited parenting skills such as feeding and changing the baby. There is very little interaction between mother and child and minimal affection for the child. Mother is generally ready to leave halfway into an hour-long visit having become bored. She has made comments to DCF about " When will the case end? When will he be adopted?" The visits at the foster home are similar in nature. Mother attends about 70% of the available visits and generally leaves about twenty to thirty minutes into the hour-long visit.
Mother underwent two court-ordered evaluations. The first was to determine her competency; the second was a psychological evaluation to determine what services would be appropriate. The competency evaluation indicated that mother had both long-term and short-term memory deficits. Her cognitive deficits are severe, longstanding, and chronic. During the course of the evaluation her ability to learn and retain relevant information (even with the use of visual aids and simple language) was minimal.
The psychological evaluation revealed that mother cannot read or count, and is unable to tell time using an analog or digital display clock. Her current IQ is 46, significantly lower than previous test scores. The decline is attributed to different testing as well as her aging. In addition, lack of intellectual stimulation, as well as the use of alcohol, crack cocaine, and marijuana may have contributed to the decline. The evaluator also made suggestions as to the nature of a parenting program that could assist mother given her limitations. DCF's uncontradicted testimony was that such a program did not exist.
Reasonable Efforts
In order to terminate parental rights absent consent, DCF must prove by clear and convincing evidence that it made " reasonable efforts to locate the parent and to reunify the child with the parent . . . unless the Commissioner of Children and Families shall make reasonable efforts to reunify a parent with a child or the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts . . ." General Statutes § 17a-112(j)(1). " Because the two clauses are separated by the word 'unless, ' this statute plainly is written in the conjunctive. Accordingly, the department must prove either that it has made reasonable efforts to reunify or, alternatively, that the parent is unwilling or unable to benefit from reunification efforts." In re Jorden R., 293 Conn. 539, 552, 979 A.2d 469 (2009). Additionally, reasonable efforts are not required when the court has approved a permanency plan other than reunification pursuant to subsection (k) of section 46b-129 General Statutes § 17a-111b(a).
In reviewing reasonable efforts, " [t]he word reasonable is the linchpin on which the department's efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof. Neither the word reasonable nor the word efforts is, however, defined by our legislature or by the federal act from which the requirement was drawn . . . [R]easonable efforts mean doing everything reasonable, not everything possible." (Internal quotation marks omitted.) In re Samantha C., 268 Conn. 614, 632, 847 A.2d 883 (2001). The court must look to events that occurred prior to the date the petition was filed to determine whether reasonable efforts at reunification were made. In re Shaiesha O., 93 Conn.App. 42, 47, 887 A.2d 415 (2006).
The court finds that DCF has made reasonable efforts to locate the parents.
The primary issues leading to the child's removal were the mother's cognitive limitations and their impact on her ability to safely parent her child, as well as mother's substance abuse. There were additional concerns about mother's housing, adequate income, and choice of partners.
The Department made reasonable efforts to reunify the child with his mother. Shortly after the Order of Temporary Custody was sustained, mother self-referred to a parenting program which she completed. DCF later obtained a psychological evaluation to determine the basis for mother's limitations and for recommendations as to what services should be offered to her to facilitate reunification. After obtaining the evaluation and reviewing the suggestions regarding a parenting program, it was determined that no such program existed. DCF also provided mother with supervised visits, initially twice a week, and during those visits coached mother on child care. The visits were reduced to once a week after mother failed to visit consistently. Additionally, mother was allowed to visit the child in the foster family's home without DCF supervision. She was provided bus passes for visitation and attending substance abuse treatment.
In order to address substance abuse issues, as well as individual counseling, mother was referred to Wheeler Clinic on August 28, 2015. She eventually completed the substance abuse portion and was successfully discharged in April 2016. Another referral was made following a relapse in July 2016 but Mother failed to follow through with the program.
Mother's cognitive deficits and substance abuse issues were major barriers to reunification. Her ability to safely parent the child is the critical issue. Due to her cognitive limitations she is unable to benefit from efforts to reunify. There are no parenting programs that could accommodate mother's limitations. She lacks the capacity to retain any training or information provided by a parenting course. Despite attending a parent education program she was unable to apply those skills to her parenting of Zykell Y.
Despite completing substance abuse treatment mother continues to use cocaine. She tested positive in October 2015, July 2016 and at the end of November 2016. She was re-referred to the Wheeler Clinic after relapsing during the summer of 2016 and was unsuccessfully discharged at the end of 2016 for non-attendance.
The court approved a plan of Termination of Parental Rights and Adoption on July 18, 2016. It should be noted that DCF continued to provide visitation and substance abuse services after they filed their permanency plan of termination.
ADJUDICATION
Each statutory basis set out in General Statutes Sec. 17a-112(j) is an independent ground for termination. In re Baby Girl B., 224 Conn. 263, 618 A.2d 1. The petitioner is required to prove at least one of the grounds alleged in its petition by clear and convincing evidence.
Failure to Rehabilitate--General Statutes § 17a-112(j)(3)(B)(i)
If the parents of a child who has been found by the court to have been neglected or uncared for in a prior proceeding fail 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, they could assume a responsible position in the life of the child, grounds for termination exist. General Statutes § 17a-112(j)(3)(B)(i). " Personal rehabilitation, [as used in the statute] refers to the restoration of a parent to his or her former constructive and useful role as a parent [and] requires the trial court to analyze the [parent's] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time . . . [On assessing rehabilitation, the critical issue is not whether the parent has improved [his] ability to manage his own life, but rather whether [he] has gained the ability to care for the particular needs of the child at issue." (Internal quotation marks omitted.) In re Zowie N., 135 Conn.App. 470, 503, 41 A.3d 1056, cert. denied, 305 Conn. 916, 46 A.3d 170 (2012). Furthermore, " [i]n making its determination, the court may rely on events occurring after the date of the filing of the petition to terminate parental rights when considering the issue of whether the degree of rehabilitation is sufficient to foresee that the parent may resume a useful role in the child's life within a reasonable time." (Internal quotation marks omitted.) In re Gianni C., 129 Conn.App. 227, 234, 19 A.3d 233 (2011).
The parent's compliance with the court-ordered expectations entered at the time of the neglect adjudication are relevant but not dispositive to the rehabilitation finding. In re Luis C., 210 Conn. 157, 554 A.2d 722 (1989). The ultimate question is whether the parent at the time of the filing of the termination petition is more able to resume the responsibility of a parent than he or she was at the time of the commitment. In re Michael M., 29 Conn.App. 112, 614 A.2d 832 (1992).
The presenting issues at the time of the child's removal were: mother's ability to care for the child, her substance abuse and housing situation. For the most part, mother has substantially complied with specific steps issued by the court. She has failed however to resolve the issues that led to the removal of Zykell Y. from her care.
The critical issue is whether mother has developed the capacity to safely parent Zykell Y. considering his age and his needs. Unfortunately she has not achieved a level of parental competency that would permit Zykell Y. to return to her care and she lacks the family or social support to assist her independent care for the child on a full-time basis. Mother was born with cognitive limitations which is obviously not her fault. The condition has been exacerbated by her abuse of alcohol, cocaine, and marijuana. She does not have the parenting skills to care for a child of Zykell Y.'s age and is incapable of learning those skills. Her inability to read, tell time, and count, combined with her memory impairments, render it impossible to tailor a parenting program to meet her needs. Those same limitations also make it convincingly clear that she cannot care for Zykell Y. on a daily basis. There are no family members or a social structure available to assist her, and if there were, she would require around-the-clock supervision. Frankly, mother has failed to demonstrate any meaningful motivation to reunify with Zykell Y. Her visits have been inconsistent and when they occur they are usually terminated by mother halfway through because she cannot focus on the child any longer than thirty minutes. She does not interact with him and expresses very little affection towards him. When these limitations are viewed through the prism of mother's chronic abuse of cocaine, marijuana, and alcohol, the evidence is overwhelming that she could never resume the role of a responsible parent. The court finds this ground has been established by clear and convincing evidence.
Failure to Rehabilitate--General Statutes § 17a-112(j)(3)(E)
If the parent of a child under the age of seven years who is neglected, abused or uncared for, has failed, is unable or is unwilling to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child and such parent's parental rights of another child were previously terminated pursuant to a petition filed by the Commissioner of Children and Families, then grounds for termination exist.
The court incorporates its findings relative to ground B(1) and further finds that mother's parental rights were terminated to three other children through the Hartford Juvenile Court pursuant to petitions filed by DCF. Her rights to two children were terminated on June 13, 2005 and her rights to a third child were terminated on September 18, 2007.
Since Zykell is under the age of seven, the court finds that Ground E has been established by clear and convincing evidence.
DISPOSITION
General Statute § 17a-112(k) Criteria
The court has found by clear and convincing evidence that the necessary statutory ground alleged by the petitioner for the termination of parental rights has been proven. Before making a decision on whether or not to terminate the respondents' parental rights, the court must now consider and make findings on each of the seven criteria set out in General Statute § 17a-112(j). In re Romance M., 229 Conn. 345, 641 A.2d 378 (1994). These criteria and this court's findings, which have been established by clear and convincing evidence, are as follows:
(1) The Timeliness, Nature, and Extent of Services Offered or Provided to the Parent and the Child by an Agency to Facilitate the Reunion of the Child With the Parent
As referenced above, the Department has offered numerous services to facilitate the reunion of the mother with her child. They provided references to mental health and substance abuse treatment. They provided mother with regular visitation and assisted her with transportation. The Department obtained a psychological evaluation to help determine what type of services would be appropriate for mother. Referrals were made at the inception of the case.
(2) Whether the Department of Children and Families Has Made Reasonable Efforts to Reunite the Family Pursuant the Adoption and Safe Families Act of 1997 as Amended From Time to Time
DCF made reasonable efforts to reunify mother and child by referring her to substance abuse programs, individual counseling and case management services and by providing her with visitation and transportation.
(3) The Terms of Any Court Orders Entered Into and Agreed Upon by Any Individual or Agency and the Parent, and the Extent to Which the Parties Have Fulfilled Their Expectations
The court issued specific steps to the parties. DCF has fulfilled its expectations by making timely and appropriate referrals for services. Mother has complied for the most part with the expectations. Visitation has not always been as consistent as possible and mother failed to complete substance abuse counseling.
(4) The Feelings and Emotional Ties of the Child With Respect to the Parents, Any Guardians of his Person and Any Person who has Exercised Physical Care, Custody or Control of the Child for at Least One Year and With Whom the Child has Developed Significant Emotional Ties
There does not appear to be a significant bond between mother and child. There is a strong bond between Zykell Y. and his foster family with whom he has resided almost his entire life.
(5) The Age of the Child
Zykell Y. is eighteen months old.
(6) The Effort the Parent Has Made to Adjust his Circumstances, Conduct, or Conditions to Make it in the Best Interest of the Child to Return to her Home in the Foreseeable Future Including But Not Limited to (A) The Extent to Which the Parent Has Maintained Contact With the Child as Part of an Effort to Reunite the Child With the Parent Provided the Court May Give Weight to Incidental Visitations, Communications or Contributions; and (B) The Maintenance of Regular Contact With the Guardian or Other Custodian of the Child
Mother has made minimal efforts to adjust her circumstances. She continues to abuse drugs and alcohol and has not made an effort to increase her income or obtain more appropriate housing.
(7) The Extent to Which a Parent Has Been Prevented From Maintaining a Meaningful Relationship by the Unreasonable Act of the Other Parent or Any Other Person or by the Economic Circumstances of the Parent
Mother did not face unreasonable interference from any person and no economic circumstance prevented her from establishing or maintaining a meaningful relationship with the child. Mother was provided with legal representation at no cost as well as transportation assistance for visitation with Zykell Y.
Best Interests of the Child
The court must now address the issue of whether termination of parental rights is in the best interest of the child. This is part of the dispositional phase of a termination proceeding. In re Valerie D., 223 Conn. 492, 511, 613 A.2d 748.
In determining the issue of the best interests of the child, the court has considered the adjudicatory and dispositional evidence in its entirety, and the court has concluded by clear and convincing evidence that there is no permanency plan that could have secured the best interests of Zykell Y. that is less restrictive than termination of the parental rights at issue. The mother is incapable of resuming her parental role and no alternatives have ben proffered. See In re Azareon Y., 139 Conn.App. 457, 60 A.3d 742 (2012), cert. granted in part, 307 Conn. 950, 60 A.3d 739, and cert. granted in part, 308 Conn. 925, 64 A.3d 119 (2013); In re Julianna B., 141 Conn.App. 163, 61 A.3d 606 (2013).
Father's rights to Zykell Y. were terminated on March 6, 2017.
The court has considered Zykell Y.'s best interests, including his health, safety and need for permanency. " It is undisputed that children require secure, stable, long-term, continuous relationships with their parents or foster parents. There is little that can be as detrimental to a child's sound development as uncertainty . . ." Lehman v. Lycoming County Children's Services Agency, 458 U.S. 502, 513, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982) . . . When balancing the prospect of mother being able to independently care for Zykell Y. against his right to grow in a safe and nurturing environment, the evidence clearly and convincingly points to termination. The court reaches this conclusion not because mother is cognitively limited but because of how her limitations impact her ability to be a mother to Zykell Y. Given her inability to read, tell time or count, safety will always be an issue. Her memory impairment will certainly be a concern. Her lack of attention or ability to focus on Zykell Y. for more than a half hour will certainly affect his development. Factoring in the aforementioned conclusions with mother's chronic drug abuse, it is overwhelmingly clear that when balancing the mother's rights with the well-being of her child, termination is clearly in the child's best interest.
CONCLUSION
Based upon the foregoing findings and having considered all of the evidence and statutory considerations, and having found by clear and convincing evidence that grounds exist for the termination of parental rights, the court further finds by clear and convincing evidence, based upon all the facts and circumstances presented, that it is in the child's best interest to terminate the parental rights of Taneka Y. Accordingly, the court hereby terminates her parental rights to Zykell Y.
The court appoints the Department of Children and Families as Statutory Parent for the child and orders the filing of a status report within thirty days of the filing of this decision.
SO ORDERED.