Opinion
No. H12-CP03-009426-A
February 1, 2006
MEMORANDUM OF DECISION
On October 25, 2004, the petitioner, the Commissioner of the Department of Children and Families, ("DCF"), filed a petition pursuant to C.G.S. § 17a-112 et seq. to terminate the parental rights of Rachel B. and Anthony J., to their child, Anthony J. Respondent mother and father contest termination of their parental rights. Trial took place before this court on January 17, 2006 at the Regional Child Protection Session at the Middlesex J.D. For the reasons stated below, the court finds in favor of the petitioner.
The statutory grounds alleged against both respondents were (1) that the child was found in a prior proceeding to have been neglected or uncared for and the parents failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the age and the needs of the child, they could assume a responsible position in the life of the child (C.G.S. § 17a-112(j)(3)(B)(i)); and (2) that there is no ongoing parent-child relationship with respect to the father or mother that ordinarily develops as a result of a parent having met on a day-to-day basis the physical, emotional, moral or educational needs of the child, and to allow further time for the establishment of the parent child relationship would be detrimental to the best interest of the child. (C.G.S. § 17a-112(j)(3)(D)). The petition also alleged abandonment as to father only, in the sense that he has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child (C.G.S. § 17a-112(j)(3)(A)).
On October 28, 2003, a 96-hour hold was invoked by DCF after Anthony and mother tested positive for cocaine at Anthony's birth. An Order of Temporary Custody ("OTC") was issued by the court on October 30, 2003 (Burke, J.) and on the same date DCF filed a petition alleging neglect and that the child was uncared for in that the child's home could not provide the specialized care the child required. On March 4, 2004, the court (Bentivegna, J.) adjudicated the child neglected and found that he was permitted to live under conditions, circumstances or associations injurious to his well being and committed Anthony to the care and custody of DCF.
The court finds that notice of this proceeding has been provided in accordance with the provisions of the Practice Book. The court further finds that the Child Protection Session of the Superior Court, Juvenile Matters Division, has jurisdiction over the pending matter and that no action is pending in any other court affecting custody of the children.
"The termination of parental rights is defined as the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his [or her] parent . . . [As such, it] is a most serious and sensitive judicial action." (Citation omitted; internal quotation marks omitted.) In re Jonathan M., 255 Conn. 208, 231, 764 A.2d 739 (2001); In re Bruce R., 234 Conn. 194, 200, 662 A.2d 107 (1995).
The termination of parental rights is governed by statute. C.G.S. § 17a-112. In a proceeding for termination of parental rights, the petitioner must prove a ground alleged in the petition, as of the date of filing the petition or the last amendment, by clear and convincing evidence. In re Joshua Z., 26 Conn.App. 58, 63, 597 A.2d 842 (1991), cert. denied, 221 Conn. 901, 599 A.2d 1028 (1992); In re Teresa S., 196 Conn. 18, 29, 491 A.2d 355 (1985); Practice Book § 32a-3(b), 35a-7. Only one ground need be established for the granting of the petition. In re Juvenile Appeal (84-BC), 194 Conn. 252, 258, 479 A.2d 1204 (1984); In re Karrlo K., 44 Conn.Sup. 101, 106, 669 A.2d 1249 (1994), aff'd, 40 Conn.App. 73, 668 A.2d 1353 (1996).
Termination of parental rights trials proceed in two stages: the adjudication and the disposition. The adjudicatory stage involves the issue of whether the evidence presented establishes by clear and convincing evidence the existence of one or more of the statutory grounds as of the date the petition was filed or last amended. In re Juvenile Appeal (84-AB), 192 Conn. 254, 264, 471 A.2d 1380 (1984). "Pursuant to Practice Book § 33-3(a), [now P.B. § 35a-7] in deciding the adjudicatory phase of the hearing for the termination of parental rights, the trial court's inquiry is limited to the events and facts preceding the filing of the petition for the termination of parental rights [or last amendment]." In re Daniel C., 63 Conn.App. 339, 357, 776 A.2d 487 (2001). However, "[i]n the adjudicatory phase, 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." In re Stanley D., 61 Conn.App. 224, 230, 763 A.2d 83 (2000) (emphasis in original); see In re Latifa K., 67 Conn.App. 742, 748, 789 A.2d 1024 (2002).
If at least one pleaded ground to terminate is found, the court proceeds to the disposition stage. The court must consider whether the facts, as of the last day of trial, establish, by clear and convincing evidence, that termination is in the child's best interest. Procedurally, the evidence as to both adjudicatory and dispositional phases is heard at the same trial without first determining if the state has proven a statutory ground for adjudication before consideration of the dispositional question. In re Eden F., 250 Conn. 674, 688-89, 741 A.2d 873 (1999); In re Juvenile Appeal (84-BC), 194 Conn. at 258; State v. Anonymous, 179 Conn. 155, 172-73, 425 A.2d 939 (1979); In re Quanitra M., 60 Conn.App. 96, 102, 758 A.2d 863, cert. denied, 255 Conn. 903, 762 A.2d 909 (2000); In re Emmanuel M, 43 Conn.Sup. 108, 113, 648 A.2d 904, (1993), aff'd, 35 Conn.App. 276, 278, 648 A.2d 881, cert. denied, 231 Conn. 915, 648 A.2d 151 (1994); In re Nicolina T., 9 Conn.App. 598, 602, 520 A.2d 639, cert. denied, 203 Conn. 804, 525 A.2d 519 (1987).
I. FACTS
At trial, the petitioner introduced the social study and addendum, a psychological evaluation, and other documentary evidence, and the testimony of DCF social workers Ama Tandoh and Lekita Ransome, and Anne Phillips, Psy. D., an expert in clinical and forensic psychology. Respondent mother called intervening paternal grandmother to testify. Respondent father, the child, and paternal grandmother called no witnesses. The credible evidence admitted at trial supports the following facts by clear and convincing evidence:
A. Respondent Mother — Rachel B. CT Page 2249
Respondent mother, Rachel B., was born in Ohio on March 14, 1974. Mother reported to DCF that her mother never married her biological father who passed away prior to her birth. Mother experienced a very difficult childhood in which she was physically and sexually abused by the man she identified as a father until her mother left him when Rachel was seven. Rachel began using drugs during early adolescence and moved out of her mother's home in Old Saybrook when she was fourteen years old. She spent much of her adolescence in hospitals and group homes. Mother's drug use began with alcohol and marijuana at the age of twelve and elevated to the use of cocaine at sixteen and ultimately heroin, to which she was heavily addicted at the age of twenty-one. During this time, mother also became involved in abusive relationships. Mother did not graduate from high school, but received her GED in 1998 from York Correctional Institution at Niantic, CT. Mother has worked as a waitress and bartender, but due to her frequent arrests, she has been unable to maintain stable employment. Mother reported that she has hepatitis C and takes Trazadon for depression. Mother has two other children, born in 1991 and 1992, who are in the care and custody of their paternal grandmother.
Mother has an extensive criminal history dating back to 1995 and has convictions for possession of drug paraphernalia, larceny in the sixth degree (five counts), larceny in the fifth degree, larceny in the third degree, forgery in the third degree (two counts), violation of probation (four counts), breach of peace, disorderly conduct, possession of narcotics (four counts), robbery in the third degree, assault in the third degree, failure to appear (five counts), and prostitution (three counts).
Social worker Tandoh testified that when she was assigned to the case on November 18, 2003 father and mother were both whereabouts unknown. Tandoh learned that mother was incarcerated at York Correctional Institution in Niantic, CT on November 26, 2003. She spoke with mother on December 18, 2003 at which time mother stated that she wanted Anthony to be placed with a relative, Tamara J.
On two occasions, relative licensing forms or placement packets were provided to Tamara J. Upon the first application, she was determined not to be eligible for licensing because she was not employed and her means of support was state assistance. A second attempt to pursue relative placement with Tamara was made beginning in April 2005 and a home visit was scheduled for June 2, 2005. Tamara missed the visit and another visit was scheduled for June 13, 2005. Again, Tamara was not home when the worker arrived and could not be reached by phone. The worker left a message, but did not hear from Tamara again.
Mother remained incarcerated through May 2005 based on convictions for violation of probation and prostitution. Mother visited with Anthony while she was incarcerated. Upon her release, she went to McAuliffe Manor, a rehabilitation treatment program. When mother was discharged from McAuliffe Manor on May 31, 2005, she moved into a two-family home in Naugatuck with a friend where she had a nice apartment and was working as a waitress. She was consistently attending visitation with Anthony and participating in an outpatient program called Help, Inc. During this time, mother's drug screens, including a hair test, were negative.
On October 18, 2005, mother cancelled a visit with Anthony and did not give a reason for the cancellation. October 24, 2005, just before Anthony's second birthday, social worker Ransome called mother's apartment to confirm a birthday party scheduled for Anthony the following day at Chuck E. Cheese. Mother's housemate's daughter told the social worker that mother no longer lived there, that she had relapsed, quit her job, emptied her personal bank account, stole the housemate's daughter's car and moved back to the Hartford area with a friend. On October 25, 2005, mother called to cancel the party for that day stating that friends and family could not attend. She told the worker that she was no longer in any drug treatment program and confirmed that she had quit her job and moved to the Hartford area. On October 26, mother did see Anthony for his birthday at Chuck E. Cheese along with paternal grandmother. On November 1, 2005, mother cancelled her visit with Anthony stating that she had the chicken pox. Social worker Ransome did not hear from mother again. On November 8, 2005, DCF received notification that mother had been discharged from services with Help, Inc. on September 26, 2005 after she failed to appear for scheduled appointments and her non-residential group peers reported her relapse. Mother has not seen Anthony since the visit on October 26, 2005. Shortly before trial, DCF learned from mother's attorney that she was incarcerated in Massachusetts.
Mother was incarcerated in Massachusetts at the time of trial and participated fully in the trial by speaker phone from the correctional facility in Massachusetts.
B. Respondent father — Anthony J.
Respondent father, Anthony J., was born in Alabama on September 14, 1964. His father left the family home when respondent father was three. Father has a good relationship with his family and remains close to his siblings and mother, all of whom reside in Connecticut. He reported that he completed the tenth grade at Weaver High School and has not obtained a GED. He has worked on and off since he was sixteen and worked for a short time in housing construction and pest control.
Father has a criminal history dating back to 1980 including numerous convictions for robbery in the first degree, larceny, assault in the third degree, failure to appear, escape in the first degree, possession of narcotics, breach of peace, criminal trespass and burglary in the third degree. At the time of trial, father was serving a five-year sentence on a robbery conviction with a maximum release date of July 22, 2009. Ex. 7.
Father has a history of substance abuse dating back to the age of twenty when he started to use crack cocaine. He reported that he stopped using drugs in September 2003 just before Anthony was born.
At the time of Anthony's birth, father was not incarcerated. Although father was whereabouts unknown when social worker Tandoh was assigned to the case on November 18, 2003, Tandoh learned on December 4, 2003 from paternal grandmother that father was incarcerated. In April 2004, social worker Tandoh heard from father who indicated that he was released and wished to have contact with Anthony, although father had not seen the child since birth. Weekly visitation was arranged immediately and father participated in a visit on April 7, 2004. He and paternal grandmother cancelled a scheduled visit on April 14, 2004 due to a family emergency, but did attend a visit on April 21, 2004 along with a paternal aunt. Father failed to appear for a visit on April 29 at which time paternal grandmother informed DCF that father was participating in a substance abuse program. Father did not provide DCF with proof of his participation in this program at any time. Father did not attend any other visits and was then whereabouts unknown until July 23, 2004 when DCF learned that he was incarcerated on first degree robbery charges. Prior to his incarceration he had seen Anthony only twice in April 2004. Since July 2004, when DCF learned father was incarcerated again, father has had visits with Anthony in March, May, and August 2005 and January 2006. Father last visited with Anthony on January 13, 2006 at which time Anthony was unhappy and cried most of the time. Due to Anthony's distress, the visit was ended twenty minutes early.
C. Specific Steps
Specific steps were issued by the court and signed by mother on November 14, 2003 and March 4, 2004. Father signed specific steps on January 21, 2004 which were issued by the court on March 4, 2004. The specific steps required parents to do the following: keep all appointments set by or with DCF; cooperate with DCF home visits, announced or unannounced, and visits by the child's court-appointed attorney and/or guardian ad litem; keep the child's whereabouts and your own whereabouts known to DCF, your attorney and the attorney for the child; participate in parenting and individual counseling to address treatment goals including substance abuse and all related issues; submit to substance abuse assessment and follow recommendations regarding treatment, including inpatient treatment if necessary, aftercare and relapse prevention; submit to random drug testing; cooperate with recommended service providers as available while incarcerated; cooperate with court-ordered evaluations or testing; sign releases; secure and maintain adequate housing and legal income upon release; no substance abuse; no further involvement with the criminal justice system and cooperate with the Office of Adult Probation or parole officer and comply with conditions of probation or parole; maintain the child within the State of Connecticut during the duration of the case; and visit with the child as often as DCF permits.
With regard to compliance with the specific steps, father has complied with some, but not all of the specific steps. Father has had periods of time when he has not been in contact with DCF and has been whereabouts unknown. Although father visited initially with the child after father was released from incarceration in April 2004, he then missed numerous visits and in July 2004 paternal grandmother informed DCF that father was incarcerated again. While incarcerated, father had visits with Anthony in March, May and August 2005 and again in January 2006.
Mother complied with some specific steps, but failed to comply with others. She too was whereabouts unknown for certain periods of time. She had regular visitation with Anthony up until October 2005. For several months following her release from custody, mother maintained an appropriate apartment, participated in substance abuse services and was doing well. Unfortunately, she relapsed, stopped participating in services, left her employment and her apartment, reportedly stole her housemate's daughter's car, went back to the Hartford area where she had previously used drugs and stopped visiting with Anthony. Mother was discharged from services at Help, Inc. after she relapsed and missed scheduled appointments. Ex. 10.
D. The Child — Anthony J.
Anthony J. was born October 25, 2003. At the time of his birth, he tested positive for cocaine. Mother also tested positive for cocaine and admitted to taking drugs when she was eight months pregnant. Anthony has been in the same foster placement since his birth. He has some developmental delays, including speech and language delays and delays in fine and gross motor skills. He receives services from Birth to Three to help address these delays. Anthony is happy and well adjusted in the foster home where he has a strong emotional bond with his foster parents whom he calls "Mommy" and "Pappi." He also has a strong emotional bond with his four foster brothers who treat him well.
E. Psychological Evaluations
Father, mother and Anthony were evaluated by Anne Phillips, Pys. D., in June 2005. Phillips testified as an expert in the area of clinical and forensic psychology. With regard to mother, Phillips found that she was of average to above average intelligence but that she had a severe mixed personality disorder "marked by narcissistic, rebellious, impulsive and obsessive features." Ex. 3 at 6. In her report, Phillips made the following findings:
[I]nterview and testing suggest the presence of a personality disorder with impulsive, narcissistic and obsessive features. Interpersonally dependent but vigilant about potential abuse or exploitation, Ms. [B.] observes her experiences carefully without necessarily being able to make objective sense of her experience or to use observations to guide productive relatedness. Her defensiveness, fear of having her vulnerabilities exposed and abused, and her poorly understood anger and resentment combine to interfere with tolerance for relationship or use of cognitive skills to manage relationships. Ms. [B.] similarly does not attend to or make sense of her own emotions, tending to be impulsive in her expression of both sadness and anger and having only minimal understanding of the feelings related to her history of abusive relationships . . . Although Ms. [B.] is very bright and has some awareness of her pattern of using relationships and drugs to dull painful memories and feelings, she is in the very early stages of recognizing these feelings and of developing patterns of behavior and striving which are suitable to her ability and likely to provide her with a stronger sense of self and of personal competence. Ex. 3 at 3.
Phillips further found that "Ms. [B.] has a severe personality disorder [which) undermines emotional equilibrium and contributes to impulsivity and to seeking of immediate relief from emotional discomfort." Id. at 6. At the time of the evaluation Phillips found that "[a]lthough committed to parenting, [Ms. B.'s] own deprived, abusive childhood and her minimal control of the emotions associated with those experiences are likely to make it difficult for her to consistently prioritize parenting over attention to her own tumultuous emotions." Id. Phillips testified that it would be difficult for mother to rehabilitate significantly in a short period of time and that successful rehabilitation would require intensive, long-term therapy and long-term substance abuse treatment which could be expected to take eighteen to twenty-four months.
With regard to father, Phillips found that he has a borderline IQ and limited coping skills and conceptual skills in new situations. Dr. Phillips described father as follows:
Although affable and desiring of family and other connection, his ability to grasp his impact on others or the extent of their needs and requirements of him is limited. Unable to manage his own emotions and impulses, he is ill equipped to respond effectively or reciprocally to the needs of others. Mr. [J.] is apt to be so attuned to his own needs and narrow understanding of relationships that he does not really grasp the ways in which his limited response interferes with the development or maintenance of relationships. Ex. 3 at 5.
Dr. Phillips further stated that father "is a man of marginal intellectual and coping ability whose good intentions are insufficient to help him to manage unexpected and unwanted interactions, even with his child." Id. at 6. Dr. Phillips found that there was no on-going father son relationship. She concluded that "there appears no possibility that [father] can achieve rehabilitation within a time period which would allow him to assume a responsible position in the life of his son without leaving young Anthony in an uncertain position for too long." Id. at 7. Phillips also found that it would be detrimental to Anthony to allow further time to develop a father son relationship, "especially in light of [father's] very limited parenting and frustration tolerance abilities." Id.
Phillips also testified that she observed the child with mother, father and with foster parents. With regard to mother and child, she testified that they interacted well although they were less familiar with each other than foster parents and Anthony. Phillips observed that there was some language difficulty between Anthony and mother because Anthony is being raised in a bilingual household and was speaking in a mixture of Spanish and English, with perhaps more Spanish than English.
Father's interactions with Anthony were observed in a courthouse setting without toys or stimulation for the child which made the interaction more difficult. However, father was pleased to see Anthony and attempted to engage him in physical games. While Anthony initially enjoyed being "swooped" through the air, he ultimately became overstimulated and started to cry. Father demonstrated limited parenting skills in failing to appreciate that he was making the situation worse by continuing the physical conduct and becoming impatient with Anthony. While Phillips stated that parenting classes could be beneficial, a significant amount of time, together with ongoing sobriety, would be required to achieve increased parenting skills and facilitate father's ability to relate positively to the child. And, as set forth above, Phillips concluded that allowing additional time would be detrimental to Anthony. Id. at 7.
With regard to foster parents, Phillips observed that they interacted as though they were mother and father to the child. Anthony was very comfortable with them and looked to them for nurturing and was responsive to them.
Although paternal grandmother and Tamara J. were to be included as part of the psychological evaluation, they did not appear for the evaluation.
F. Testimony of Paternal Grandmother
Paternal grandmother testified that she was present during visits with both respondent mother and father and that the child interacted well with both of them. She testified that her primary concern was that the baby remain with the family until mother and father were rehabilitated. She would like Anthony to grow up knowing his paternal relatives. Although grandmother was not in a position to be a placement resource for the child, she gave the name of a cousin, Michelle M., who was interested in adopting Anthony. Grandmother testified that the family did not understand why Tamara did not receive DCF approval for placement.
II. ADJUDICATION
The grounds alleged in the petition as to both respondent mother and father are (1) that the child Anthony was found in a prior proceeding to have been neglected or uncared for and the parents failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the age and the needs of the child, they could assume a responsible position in the life of the child (C.G.S. § 17a-112(j)(3)(B)(i)); and (2) that there is no ongoing parent-child relationship with respect to the parents that ordinarily develops as a result of a parent having met on a day-to-day basis the physical, emotional, moral or educational needs of the child, and to allow further time for the establishment of the parent child relationship would be detrimental to the best interest of the child. (C.G.S. § 1 7a-112(j)(3)(D)). As to respondent father, petitioner alleged the additional ground of abandonment, in the sense that he has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child (C.G.S. § 17a-112(j)(3)(A)). The petitioner is required to prove these grounds by clear and convincing evidence. In re Baby Girl B., 224 Conn. 263, 280, 618 A.2d 1 (1992).
A. Location and Reunification § 17a-112(j)(1):
In order to terminate parental rights, DCF must prove, by clear and convincing evidence, the statutory element requiring "reasonable efforts to locate the parent and to reunify the child with the parent, 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). "Although [n]either the word reasonable nor the word efforts is . . . defined by our legislature or by the federal act from which the requirement was drawn . . . [r]easonable efforts means doing everything reasonable, not everything possible." (Internal quotation marks omitted; citation omitted.) In re Mariah S., 61 Conn.App. 248, 255, 763 A.2d 71 (2000).
With regard to respondent mother, DCF made reasonable efforts to locate her. She was whereabouts unknown after her last visit with Anthony on October 26, 2005 until shortly before trial when she was determined to be incarcerated in Massachusetts. Throughout the case, mother has known how to contact DCF if she wished to do so.
Respondents claim that DCF did not make reasonable efforts to reunify. Both parents were incarcerated during much of the time Anthony has been in DCF care. While parents are incarcerated, DCF cannot offer them services other than visitation. See In re Jermaine S., 86 Conn.App. 819, 839, 863 A.2d 720, cert. denied, 273 Conn. 938, 875 A.2d 43 (2005), In re Destiny D., 86 Conn.App. 77, 83, 859 A.2d 973, cert. denied, 272 Conn. 911, 863 A.2d 702 (2004). Both parents were required under their specific steps to participate in services through the Department of Correction. In re Jermaine S., 86 Conn.App. at 839 (reasonable efforts were made where while father was incarcerated, DCF routinely communicated with paternal grandmother who acted as a messenger, brought child to correctional facility two times, and advised father to take advantage of programs offered by Department of Correction). In this case, both parents were offered visitation when it was requested while parents were incarcerated and after they were released. After he was incarcerated the second time, father requested visitation with Anthony. DCF worker Ransome testified that although she attempted to schedule regular monthly visits at Walker Correctional Institution, visits had to be scheduled through a particular individual there and she encountered difficulties in getting the visits scheduled. Thus father had some visitation, though not monthly visitation while he was incarcerated.
With regard to mother, in addition to visitation, other services, including Help, Inc. were also provided to her after her release. Mother took advantage of these services, but was unable to benefit from them after a few months and relapsed in the fall of 2005. The court therefore finds that mother has been unable or unwilling to benefit from reunification services.
When father was not incarcerated he too failed to benefit from and take advantage of services. After requesting visitation with Anthony when he was released in April 2004, father attended only two visitation sessions in April 2004. At the next scheduled visitation on April 29, 2004, paternal grandmother informed DCF that father was not coming because he was "in a program." No further information was provided to DCF regarding the program. The next information DCF received through grandmother was that father was back in custody on first degree robbery charges. In view of father's incarceration from July 2004 through the present, DCF's efforts to reunify were reasonable. Father has not played an active role in the life of the child during the time he has been in DCF care and although father visited with Anthony a few times, he has not put himself in a position to have the child placed with him. He has been unable or unwilling to benefit from reunification services. Under all the circumstances, the court finds by clear and convincing evidence that DCF made reasonable efforts to reunify in this case.
With regard to DCF's efforts to pursue possible relative placements, DCF's efforts were reasonable. Social Worker Ransome made two scheduled visits, with notification by letter, to the apartment of Tamara J. who was not there on either occasion. Tamara did not respond to DCF's efforts to contact her. Certainly, if placement were possible, father, mother, Tamara J. or paternal grandmother would have discussed the matter further with DCF. DCF's actions do not reflect a failure to make reasonable efforts to reunify.
B. Parental Failure to Rehabilitate — § 17a-112(j)(3)(B)(i)
The petitioner alleges that respondent mother and father's parental rights should be terminated because they have failed to achieve rehabilitation within the meaning of C.G.S. § 17a-112(j)(3)(B). As Anthony was found to be neglected on March 4, 2004, the critical issue for this court is whether the respondents have achieved rehabilitation sufficient to render them able to care for the child. The court finds this issue in favor of the petitioner.
Section § 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 Superior 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 such parent 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 and useful role as a parent . . . [The statute] requires the court to find, by clear mid convincing evidence, that the level of rehabilitation she has achieved, if any, falls short of that which would reasonably encourage a belief that [within a reasonable time] she can assume a responsible position in her child's life.' (Citations omitted; internal quotation marks omitted). In re Eden F., 250 Conn. at 706 . . . [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 Shyliesh H., [ 56 Conn.App. 167, 180, 743 A.2d 165 (1999)]. 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, cert. denied, 255 Conn. 950, 269 A.2d 63 (2001); In re Amneris P., 66 Conn.App. 377, 384-85, 784 A.2d 457 (2000).
The court finds by clear and convincing evidence that neither respondent has achieved a sufficient degree of 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. See In re Daniel C., 63 Conn.App. at 354; In re Ashley S., 61 Conn.App. at 665; In re Sarah Ann K., 57 Conn.App. at 448. "The psychological testimony from professionals is rightly accorded great weight in termination proceedings." (Internal quotation marks and citation omitted.) In re John G., 56 Conn.App. 12, 24, 740 A.2d 496 (1999). The psychological evidence in this case clearly establishes that neither parent has achieved § 17a-112(j)(3)(B) rehabilitation.
Dr. Phillips found the following with regard to father:
Unable to manage his own emotions and impulses, he is ill-equipped to respond effectively or reciprocally to the needs of others. Mr. [J.] is apt to be so attuned to his own needs and narrow understanding of relationships that he does not really grasp the ways in which his limited response interferes with the development or maintenance of relationships. Ex. 3 at 5.
Dr. Phillips further found that father is of marginal intellectual and coping ability whose good intentions are insufficient to help him manage unexpected and unwanted interactions even with his child. Id. at 6.
With regard to mother, Dr. Phillips found that she had a severe mixed personality disorder "marked by narcissistic, rebellious, impulsive and obsessive features." Ex. 3 at 6. Dr. Phillips found that it would be difficult for mother to "consistently prioritize parenting over attention to her own tumultuous emotions" as a result of "her own deprived, abusive childhood and her minimal control of the emotions associated with those experiences." Id.
Although specific steps were issued to assist both respondents in achieving rehabilitation, they failed to fulfill them in a number of significant measures. They have not visited with Anthony as often as DCF permitted even when they were not in custody. After the steps were issued, both parents engaged in additional criminal conduct resulting in incarceration.
The court concludes by clear and convincing evidence, that as of the adjudicatory date of October 25, 2004, respondents had not brought themselves into a position in which they could provide adequate care for the child. Mother and father were both in custody at that time and not in a position even to begin to assume a responsible position in the life of the child.
The court must also consider whether events after the adjudicatory date establish "a degree of rehabilitation that is sufficient to foresee that the parents may resume a useful role in the child's life within a reasonable time." In re Stanley D., 61 Conn.App. at 230; In re Latifa K., 67 Conn.App. at 749-50 (acknowledging that the court could take facts into account from beyond the adjudicatory period in making its decision in the adjudicatory phase with regard to whether the degree of rehabilitation was sufficient to foresee that the parent may resume a useful role in the child's life within a reasonable time). Here, father's circumstances did not change after the adjudicatory date and he continued to be incarcerated. Mother was released from custody and did well at McAuliffe Manor. However, after she had been on her own for a few months, she relapsed, stopped participating in services, gave up her employment and her apartment and even stopped visiting with Anthony. She was whereabouts unknown for a period of almost three months and was ultimately determined to be incarcerated in Massachusetts.
Rehabilitation must be foreseeable within a reasonable time. In re Sheila J., 62 Conn.App. 470, 479-80, 771 A.2d 244 (2001). "What constitutes a reasonable time is a factual determination that must be made on a case-by-case basis." In re Stanley D., 61 Conn.App. at 231 (quoting In re Michael L., 56 Conn.App. 688, 694, 745 A.2d 847 (2000)). With regard to father, Dr. Phillips concluded that "there appears no possibility that [father] can achieve rehabilitation within a time period which would allow him to assume a responsible position in the life of his son without leaving young Anthony in an uncertain position for too long." Ex. 3 at 7.
Phillips testified that in view of mother's personality disorder and substance abuse issues, it would be difficult for mother to rehabilitate significantly in a short period of time and that it would require intensive, long-term therapy and long-term substance abuse treatment for mother to rehabilitate. She testified that this process could be expected to take eighteen to twenty-four months. Anthony has been in DCF care since birth for well over two years. Here, for a child who now has the stability of a wonderful foster home and foster parents who would like to adopt him, the time needed for rehabilitation of respondents even under the best of circumstances is not reasonable. Rehabilitation itself remains contingent on numerous factors, including continued counseling and substance abuse treatment. As noted by the child's attorney, both respondents have had over two years to accomplish such rehabilitation while Anthony remained in DCF care.
Neither mother nor father have been able to manage their own lives, let alone the life of a child. Father has remained incarcerated. Even when mother was not incarcerated, she was unable to maintain her employment and housing and remain drug-free. The court finds that neither father nor mother is in a position to provide day-to-day care for the child or to assume a useful role in his life and that they have not achieved rehabilitation as would encourage the belief that they will be in such a position within a reasonable time. At the time of trial, respondents had not rehabilitated to the point where they were in a position to play a constructive role in the day-to-day care of the child.
The court is mindful that parents are not required to be "able to assume full responsibility for a child, without the use of available support programs." In re Juvenile Appeal (84-3), 1 Conn.App. 463, 477, 473 A.2d 795, cert. denied, 193 Conn. 802, 474 A.2d 1259 (1984); In re Migdalia M., 6 Conn.App. 194, 203, 504 A.2d 533, cert. denied, 199 Conn. 809, 508 A.2d 770 (1986). The fact that parents require continued counseling and treatment is not the basis of the court's determination that they have not sufficiently achieved rehabilitation. See In re Jessica B., 50 Conn.App. 554, 564, 718 A.2d 997 (1998) (trial court's finding that respondent had failed to achieve rehabilitation was properly based on her inability to meet court-approved expectations, and not on her mental retardation); In re Jessica S., 51 Conn.App. 667, 672-74, 723 A.2d 356 (1999) (trial court properly found a failure to rehabilitate); In re Nicolina T., 9 Conn.App. at 606 (trial court terminated parental rights not because of mental condition, but because of an inability to function as a parent). At the time of trial, parents were still not in a position to begin reunification as they remained incarcerated.
In assessing rehabilitation, "[t]he critical issue is whether the parent has gained the ability to care for the particular needs of the child at issue." In re Mariah S., 61 Conn.App. at 261; accord, In re Gary B., 66 Conn.App. at 292; In re Amneris P., 66 Conn.App. at 384-85. The issue is not whether respondents have improved their ability to manage their own lives, but rather whether they have gained the ability to care for the particular needs of the child. In re Shyliesh H., 56 Conn.App. at 180; In re Sarah Ann K., 57 Conn.App. at 448. Anthony has some developmental delays, but is doing well. Anthony needs and deserves a safe, stable and nurturing environment. Expressing love for a child and visiting with a child occasionally is vastly different from being able to care for the particular needs of a child on a day-to-day basis, even with supports in place. As Judge Brenneman stated in In re Samantha B., 45 Conn.Sup. 468, 477, 722 A.2d 300 (1997), aff'd, 51 Conn.App. 376, 721 A.2d 1255 (1998), "Terminating a parent's rights is not ordered to punish a parent who has not tried to rehabilitate; it is ordered so as not to punish a child by denying her a safe, permanent home with proven competent care-takers because her biological mother has tried hard but continues to be incapable of providing such a home for her." Here, respondent parents have not made sufficient efforts to rehabilitate and remain unable to provide the day-to-day care this child needs within a reasonable time. The child now has a foster family with whom he has lived since birth and with whom he has thoroughly bonded. The family is committed to the child and would like to adopt him.
Thus, in its totality, the clear and convincing evidence compels the conclusion that respondent mother and father remain unable to successfully parent the child and lack the ability to assume a responsible position in the child's life within a reasonably foreseeable time in the future. Accordingly, the court finds that petitioner has proven respondents' failure to achieve rehabilitation by clear and convincing evidence pursuant to C.G.S. § 17a-112(j)(3)(B).
C. No Ongoing Parent-child Relationship — § 17A-112(j)(3)(D)
This ground is established when there is no ongoing parent-child relationship with the parent, which is defined as the relationship that ordinarily develops as a result of a parent having met on a continuing day-to-day basis the physical, emotional, moral and educational needs of the child and where allowing further time for the establishment of the parent-child relationship would be detrimental to the best interest of the child.
No ongoing parent-child relationship contemplates a situation in which, regardless of fault, a child either has never known his or her parent, or that no relationship has ever developed between them, or that the child has lost that relationship so that despite its former existence it has now been completely displaced. In re Juvenile Appeal (Anonymous), 181 Conn. 638, 645-46, 436 A.2d 290 (1980); In re John G., 56 Conn.App. at 22. In any case, "the ultimate question is whether the child has no present memories or feelings for the natural parent." In re Juvenile Appeal, (Anonymous), 177 Conn. 648, 670, 420 A.2d 875 (1979). The mere recognition of an individual as a parent will not defeat this ground. In re Juvenile Appeal (84-6), 2 Conn.App. 705, 708-09, 438 A.2d 1101 (1984), cert. denied, 195 Conn. 801, 487 A.2d 564 (1985). The presence or absence of positive feelings on the part of the child is determinative. In re Shane P., 58 Conn.App. 234, 240, 754 A.2d 169 (2000).
In the adjudicatory phase, the petitioner must establish as to both respondents (1) that no ongoing parent-child relationship exists; and (2) that the allowance of further time for the establishment of such a relationship would harm the interests of the child. In re Jonathon G., 63 Conn.App. 516, 525, 777 A.2d 695 (2001).
The court finds by clear and convincing evidence that as of the adjudicatory date, there was no ongoing parent-child relationship between the child and respondent parents. Mother and father were both incarcerated. Neither parent had ever provided day-to-day care for the child and had only limited contact with him. Although Anthony recognized his mother as a result of their visiting relationship, she has never met his needs on a day-to-day basis. Thus, there is no ongoing parent-child relationship.
With regard to respondent father, he has had only limited visitation with Anthony. Anthony was not particularly comfortable with father during the psychological evaluation. Respondent father visited Anthony only twice when he was not incarcerated. As a result of his own conduct, father has never provided day-to-day care for the child. Thus Anthony would not seek comfort from him or go to him to have his needs met.
Although both respondents are well-intentioned to the extent that they express love for the child, a desire to visit him and a desire to see him placed with family, the fact remains that neither of them has been in a position to care for Anthony since his birth. As a result of their own conduct, parents have rendered themselves unavailable to serve as a parent for Anthony. See In re Shane P., 58 Conn.App. at 241. Neither respondent has been able to meet on a day-to-day basis the physical, emotional, moral or educational needs of their child in well over two years. In re Jonathon G., 63 Conn.App. at 525.
The court further finds by clear and convincing evidence that to allow respondents further time for the reestablishment of a parent-child relationship with the child who is in a stable, nurturing foster home would be detrimental to the best interest of the child. Anthony is now approximately twenty-seven months old. He has been in the same foster home since birth. Anthony has not seen his mother since October 2005 when mother stopped visiting. According to the testimony of Dr. Phillips, mother will be unable to assume a responsible parental role for the child for at least another year and a half to two years, under the best of circumstances. Dr. Phillips also found that there was no ongoing father son relationship between Anthony and father and that it would be detrimental to Anthony to allow further time to develop a father son relationship, "especially in light of [father's] very limited parenting and frustration tolerance abilities." Ex. 3 at 7. Father's maximum release date from custody is July 2009. In view of the child's needs, it would be detrimental to Anthony to allow this substantial amount of time in which respondents could attempt to establish a parent-child relationship.
This, the court finds that the petitioner has proven this statutory ground for termination as to respondents Rachel B. and Anthony J. by clear and convincing evidence.
D. Abandonment: C.G.S. § 17a-112(j)(3)(A)
Petitioner has alleged as to respondent father that he has abandoned Anthony.
"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. In re Juvenile Appeal (Docket No. 9489), 183 Conn. 11, 14, 438 A.2d 801 (1981)." In re Kezia M., 33 Conn.App. 12, 18, 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993); In re Terrance C., 58 Conn.App. 389, 394, 755 A.2d 232 (2000). This ground is established when the 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. Sporadic efforts are insufficient to negate the claim of abandonment. In re Roshawn R., 51 Conn.App. 44, 53, 720 A.2d 1112. Indicia of interest, concern and responsibility include "attempts to achieve contact with a child, telephone calls, the sending of cards and gifts, and financial support." In re Drew R., 47 Conn.App. 124, 129, 702 A.2d 647 (1997). The test for determining abandonment of a child for purposes of termination of parental rights cases is not whether a parent has shown "some interest" in his or her child, but rather, whether the parent has maintained any reasonable degree of interest, concern or responsibility as to the child's welfare. In re Rayna M., 13 Conn.App., 23, 36, 534 A.2d 897 (1987). "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.) In re Deana E., 61 Conn.App. 185, 193, 763 A.2d 37 (2000); In re Jermaine S., 86 Conn.App. 819, 840, 863 A.2d 720 (2005).
Respondent father has had very limited contact with the child. See In re Deana E. et al., 61 Conn.App. at 185. He failed to maintain regular visitation with his child. During the first five months Anthony was in DCF care, father did not visit with the child. He did not contact DCF during his December 2003 through March 2004 incarceration to request any visitation or to inquire as to the well being of his son. He did contact DCF to arrange visitation after he was released, but attended only two visits in April 2004. Father did not send gifts or letters to the child, provide financial support or contact DCF to inquire as to Anthony's well-being. Father's efforts to maintain contact with his child, therefore, cannot be viewed as anything other than sporadic. Such efforts, as set forth above, are insufficient to negate the claim of abandonment. In re Roshawn R., 51 Conn.App. at 53. Certainly father has shown "some interest" in his child and his welfare, but the degree of interest shown by father was not reasonable under the circumstances. As set forth above, indicia of interest, concern and responsibility include "attempts to achieve contact with a child, telephone calls, the sending of cards and gifts, and financial support." In re Drew R., 47 Conn.App. at 129. Father failed to take advantage of the visitation when it was offered attending only two visits during the time he was not incarcerated. Father has not paid child support for Anthony. This conduct on father's part does not demonstrate a reasonable degree of interest. In re Jermaine S., 86 Conn.App. at 840 (while father's imprisonment alone did not constitute abandonment, it did not excuse his failure to attempt either to contact or to visit with his son).
The court recognizes that father still wishes to have a visiting relationship with his child. A desire for occasional visiting contact however, is not a "reasonable degree of interest, concern or responsibility as to the children's welfare." The court therefore concludes that this ground has been established by clear and convincing evidence as to respondent father.
III. DISPOSITION
As to the dispositional phase of this hearing on the petition for termination of parental rights, the court has considered the evidence and testimony related to circumstances and events up to and including January 17, 2006, the date upon which the evidence in this matter was completed. "`If the trial court determines that a statutory ground for termination exists, then it proceeds to the dispositional phase. During the dispositional phase, the trial court must determine whether termination is in the best interests of the child.' [ In re Eden F., 250 Conn. at 689]." In re Quanitra M., 60 Conn.App. at 103. "In arriving at that decision, the court is mandated to consider and make written findings regarding seven factors delineated in General Statutes [17a-112(k)]." In re Jonathon G., 63 Conn.App. at 528 (quoting In re Denzel A., 53 Conn.App. 827, 833, 733 A.2d 298 (1999)). The seven factors "serve simply as guidelines to the court and are not statutory prerequisites that need to be proven before termination can be ordered." In re Quanitra M., 60 Conn.App. at 104. The court considers each of them in determining whether to terminate parental rights under this section. The court makes the following seven written findings:
(1) As to the timeliness, nature and extent of services offered, provided and made available to the parents and the children by an agency to facilitate the reunion of the children with respondents, the court finds that DCF offered services to mother to address substance abuse, mental health and parenting issues. Mother did successfully participate in some services, but ultimately was unsuccessful in benefitting from the services and relapsed. Respondent father, incarcerated for all but a few months of Anthony's life, was not in a position to benefit from DCF services although he participated in some visitation.
(2) As to whether DCF has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended, the court finds as discussed above that DCF made such efforts.
(3) As to the extent to which all parties have fulfilled their obligations under the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, the court finds specific steps were ordered as to respondents. As set forth above, there was compliance by respondent mother and father as to some steps, but failure to comply with many others. DCF has fulfilled its obligations to facilitate reunification of the family.
(4) As to the feelings and emotional ties of the child with respect to the child's parents, any guardian of such child's person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties, the court finds that although Anthony recognizes mother, he does not have a strong emotional bond with her. Similarly, he does not have a strong emotional bond with father with whom he has visited only several times in over two years. The child does have a strong emotional bond with his foster parents and siblings with whom he has lived since birth. Anthony has adjusted very well in his foster family and the foster parents are providing the day-to-day physical, emotional, moral and educational support the child needs. The foster parents are committed to the child and would like to adopt him.
(5) As to the age of the child, the court finds that Anthony, born October 25, 2003, is two years old. The court further finds that this child requires stability of placement and continuity of care and that the child's attorney recommends termination.
Our Supreme Court has long recognized the deleterious effect of prolonged temporary care of abused and neglected children. In re Juvenile Appeal (84-CD), 189 Conn. 276, 292, 455 A.2d 1313 (1983). The Appellate Court has also noted, "[b]ecause of the psychological effects of prolonged termination proceedings on young children, time is of the essence . . ." In re Alexander V., 25 Conn.App. 741, 748, 596 A.2d 930 (1992), aff'd, 223 Conn. 557, 613 A.2d 780 (1994).
(6) As to the efforts the parents have made to adjust such parent's circumstances, conduct, or conditions to make it in the best interest of the child to return such child home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions, and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; the court finds that respondent mother has maintained contact with the child and DCF and has attended visitation, at least until October 2005, and father has also maintained contact while incarcerated. The court further finds that respondents are unable to assume a responsible parental role in the child's life. Giving them additional time would not likely enable them to adjust their circumstances, conduct or conditions to make it in the best interest of the child to be reunited. In re Luis C., 210 Conn. 157, 554 A.2d 722 (1989); In re Juvenile Appeal, 183 Conn. 11, 15, 438 A.2d 801 (1981).
(7) As to the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent, the court finds no unreasonable conduct by the child protection agency, foster parents or third parties. DCF took steps to facilitate reunification. Further, while the respondents' financial means were limited, economic factors did not prevent regular, continuing contact with the children.
With respect to the best interests of the child contemplated by C.G.S. § 17a-112(j)(2), by clear and convincing evidence, and based upon all of the foregoing, the court finds that termination of the parental rights of Rachel B. and Anthony J. to the child Anthony J. is in the best interest of the child. Permanency, consistency and stability are crucial for Anthony. He is now in a foster home where he is very well cared for by foster parents who are fully committed to him. Mother and father acknowledge that the child is well cared for although father disapproves of the child being raised in a Spanish-speaking family. While both respondents love their child and would like to care for him, mother and father have been consistently unable to assume a responsible parental role for Anthony. Neither parent has achieved rehabilitation or made sufficient improvements in their ability to care for the child and they are not in a position to provide day-to-day care for the child. Throughout the child's stay in foster care, parents have not modified their behavior to make it appropriate for the child to be reunified with them. Given mother's failed attempts in services and at treatment programs, there is little, if any, likelihood of her improving to the point where she could be a responsible parent in the future. The testimony established that father will not be released from incarceration until 2009, a period of time too long for Anthony to wait to see if father can achieve rehabilitation and assume a responsible position in his life.
In finding that termination of parental rights would be in the child's best interest, 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 foster parents and biological parents; the degree of contact maintained with his biological parents; and his genetic bond to respondents. In re Alexander C., 60 Conn.App. 555, 559, 760 A.2d 532 (2000); In re Shyina B., 58 Conn.App. 159, 167, 752 A.2d 1139 (2000); In re Savanna M., 55 Conn.App. 807, 816, 740 A.2d 484 (1999). The court has also balanced the child's intrinsic need for stability and permanency against the potential benefit 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). Under such scrutiny, the clear and convincing evidence establishes that termination of parental rights is in the child's best interest.
Intervening paternal grandmother asks the court to consider her position that the child would be better off with continuing contact with the biological parents and extended family. She was not, however, in a position to be a placement resource for the child. Another relative, Tamara J., did not meet DCF's eligibility requirements initially and later failed to pursue placement of the child with her. Parents and paternal grandmother are now requesting that another relative, Michelle M., be considered for placement, although her name was not provided to DCF until a few days before trial.
With regard to permanency, the court considers the testimony that the foster parents have indicated that they wish to adopt Anthony and that he has been part of their family since he was three days old. He is thoroughly bonded with his foster parents and brothers. Anthony is entitled to a resolution, without delay, of the period of uncertainty as to the availability of respondents to serve as his parents by terminating respondents' parental rights. The coat also notes that counsel for the child recommends termination.
After considering the child's sense of time, his need for a secure and permanent environment, the need to avoid future placements, and the totality of circumstances, the court concludes that termination of parental rights of respondent mother and father is in the child's best interest. It is accordingly, ORDERED that the parental rights of Rachel B. and Anthony J. are hereby terminated as to the child Anthony. The Commissioner of the Department of Children and Families is hereby appointed the statutory parent for the child.
With regard to the permanency plan for the child, the court hereby approves the plan of termination of parental rights and adoption and finds that such plan is in the best interest of the child. The court also finds that DCF has made reasonable efforts to effectuate the permanency plan. A permanency plan shall be submitted within thirty days of this judgment, and such further reports shall be timely presented to the court as required by law.
Judgment may enter accordingly.
It is so ordered.