Opinion
Nos. H12-CP07-011455-A, H12-CP07-011456-A, H12-CP07-011457-A
April 8, 2009
MEMORANDUM OF DECISION
This is a termination of parental rights case.
Each of the following facts is found by clear and convincing evidence:
1. Christine B. ("Christine") was born in December 1998.
2. On September 13, 1999, the commissioner of the department of children and families ("DCF") became involved with the family.
3. Christopher B. ("Christopher") was born in December 2000.
4. Christal B. ("Christal") was born in May 2002. The father had a criminal record, inter alia, related to his substance abuse issues, and he was disabled. He confirmed that neither the mother or he were able to care for Christal.
5. On May 21, 2002, a DCF social worker visited the parents' home. She found that
. . . there was scattered garbage, piles of clothing, and dirty dishes piled in the sink . . . [S]he was unable to open the door to the children's room due to the items scattered on the floor.
(Exhibit 1, 4.)
6. A supporting housing services worker confirmed that the condition of the family home "had been a problem" and that Christine and Christopher had been coming to supporting housing programs "dirty and unkempt." Id.
7. On May 22, 2002, DCF invoked a ninety-six-hour hold on Christal. A DCF worker noted that the mother and the father "appeared to be relieved" when they were given notice of the administrative hold on Christal.
8. On May 24, 2002, in the Superior Court for Juvenile Matters ("SCJM") DCF filed a neglect petition concerning Christal, and on such day DCF also filed an motion for an ex parte order of temporary custody of Christal, which motion was granted by the court.
9. On June 21, 2002, DCF administratively determined that the mother had physically neglected Christine and Christopher because of inadequate shelter, e. g., the allegations of physical neglect were substantiated. DCF also administratively determined that the mother and the father physically neglected and abandoned Christal. At the time of Christal's birth the parents had told the hospital staff that they wanted to place her for adoption and they did not plan to take her home. They did not make any other arrangements for her care.
10. In August 2002, the court-appointed psychologist who evaluated the mother and Christal in 2008 evaluated the mother and the father. He reported that the mother acknowledged that her apartment was not fit for Christal and she had located another apartment. Id., 6.
11. On October 3, 2002, Christal was adjudicated uncared for and she was committed to the care, custody and guardianship of DCF. She remained in such care through September 13, 2005, when she was reunited with the mother.
12. In December 2003, the father died.
13. In December 2003, Shade was born.
14. On August 18, 2006, DCF administratively determined that the mother had physically neglected Christine, Christopher, Christal and Shade because of conditions injurious to their well-being.
15. On June 10, 2007, an anonymous caller alleged to DCF that the mother was physically abusing Christine, Christopher, Christal and Shade by hitting them on the face, back and head with a plastic bat, that she was not feeding Christopher or Christal, that the children were forced to stand for up to three hours at a time as a means of discipline, and that they were required to scrub and clean in the home.
16. On June 20, 2007, the mother claimed to a DCF worker that she had hit Christopher and Christal with a bat only once. Id., 7. However, she also stated that she was "tired of beating [Christopher]." Such DCF worker observed that Christal had more than ten healed bruise marks on her neck. Id. Out of the presence of the mother, the children told the worker that the mother caused the bruises. Id., 8. Shade reported that she saw the mother holding Christal by her neck. The DCF worker also observed that the home was in poor condition: the carpet was "filthy"and the children's bedrooms "smelled strongly of urine." Id. The children did not have medical coverage and the mother would not say when the children had last visited a physician. Id.
In an interview, Christine stated that her mother hit her with a belt, yelled at and hit her siblings, and the mother made her and her siblings to stand in a corner and hold books up. Id.
Christopher also reported that the mother "frequently beat him with a belt or cord." Id. He confirmed that he was forced by the mother to sleep on the floor. Id. He was also forced by the mother to clean in the home. See id., 16.
Christal reported that she was beaten by the mother "with a bat and a belt . . ." and that she was required to clean the kitchen floor "with wipes." Id., 8. On several occasions she has stated that the mother hit her, scratched her, kicked her down the stairs, hit her with a bat, choked her and deprived her of food. Id., 9, 14-17. She feared her mother. Id., 16.
17. On June 21, 2007, DCF invoked a ninety-six-hour hold on Christine, Christopher, Crystal and Shade. Christine, Christopher, Crystal and Shade have not been in the custody of the mother since June 21, 2007.
18. On June 25, 2007, DCF filed neglect petitions and motions for ex parte orders of temporary custody for Christine, Christopher, Cristal and Shade, which motions were granted by the SCJM. On such date, preliminary specific steps were ordered for the mother.
19. On October 2, 2007, Christine, Christopher, Cristal and Shade were adjudicated neglected and committed to the care, custody and guardianship of DCF. The SCJM ordered final specific steps for the mother.
20. On June 5, 2008, the mother and Christal were evaluated by a court-appointed forensic psychologist. Such experienced psychologist reported, inter alia, that:
[The mother] has severe, pervasive psychological problems that impede her ability to effectively parent children. The lack of progress with regard to working through trauma from her own childhood has resulted in repeated, extreme abuse of her own children. This examiner is concerned that irreparable psychological harm will befall any children placed in her care.
(Exhibit 1, 20.)
The examiner further recommended that such children remain with the paternal grandparents who had been caring for them. Id.
21. On July 9, 2008, the mother gave birth to a half-sibling of such children.
22. On July 10, 2008, the hospital reported such birth to DCF.
23. On July 15, 2008, DCF filed a neglect petition and a motion for an ex parte order of temporary custody for such half-sibling, which motion was granted by the SCJM. Such half-sibling not been in the custody of the mother since such birth.
24. On August 21, 2008, DCF filed the TPR petitions. Each petition contained an allegation that the mother had "failed to rehabilitate" in violation of General Statutes § 17a-112(j)(3)(B). "The petition concerning Christal contained an allegation of "acts of commission or omission in violation of General Statutes § 17a-112(j)(3)(C). The petitions concerning Christine, Christopher and Shade contained an allegation of "serious bodily injury" in violation of General Statutes § 17a-112(j)(3)(F).
25. On October 29, 2008, such half-sibling was adjudicated neglected and committed to the care, custody and guardianship of DCF.
26. Several persons who have worked with the mother have expressed concern about any of the children returning to her care. Id., 9, 16; exhibit 1, 20; exhibit 7.
27. Additional facts are set forth infra. Unless otherwise specified, all facts set forth in this decision are found by clear and convincing evidence.
GENERAL STATUTES § 17A-112(k) FINDINGS: 1. The timeliness, nature and extent of services offered, provided and made available to the parent and each child by an agency to facilitate the reunion of each child with the parent. (A) Over a period of approximately nine years, the mother has been offered and/or has received an extensive number of and exhaustive list of individual services and services relating to her children from or facilitated by DCF for purposes of reunification as set forth in the social worker affidavit of July 14, 2008 (exhibit 3, 3-5).1. October 5, 1999: parent aide services, St. Francis Hospital.
2. May 29, 2002: CRT Women's Support Group (discharged due to noncompliance).
3. June 11, 2002: bi-weekly individual therapy, The Village for Families and Children. The mother was referred for a psychological evaluation with an APRN at The Village for Families and Children, and was diagnosed with PTSD.
4. June 20, 2002 to October 17, 2002: Intensive Family Preservation ("IFP"), The Village for Families and Children. During the IFP service period, the mother failed to obtain employment or secure an apartment and therefore she was discharged from CRT's supportive housing program. She was also discharged from counseling sessions with her therapist.
5. October 2, 2002: the mother obtained a Section 8 housing certificate.
6. November 1, 2002 to December 19, 2002: parent aide services, The Village for Families and Children. Such services were terminated because the family was not available for such services.
7. January 31, 2003: parenting classes, The Village for Families and Children.
8. January 31, 2003: individual counseling with antidepressant medication prescribed, The Village for Families and Children.
9. April 14, 2003: family support group, The Village for Families and Children. Antidepressant medication was prescribed by the mother's primary care provider at UCONN Health Center.
10. August 12, 2003 to October 3, 2003: Intensive Family Preservation, Klingberg Family Services. The parents had difficulty maintaining in-home structure and a clean living environment. DCF determined that it was not appropriate to reunify Christal during that period of time, and DCF therefore terminated the service.
11. October 3, 2003: individual therapy, Hartford Behavioral Health.
12. November 13, 2003: family counseling, The Village for Families and Children.
13. December 1, 2003: Prozac prescribed by Dr. C.
14. January 27, 2004: individual therapy with medication, Dr. B.
15. January 30, 2004 to April 22, 2004: Intensive Family Preservation, Klingberg Family Services. According to DCF, the mother "made some progress. She connected with counseling services through Pathways, and attempted to secure grief counseling for the children following the death of their father[;] however transportation was a problem. Mother had difficulty setting limits with Christopher, and the in-home worker noticed deterioration in the organization of the home."
16. March 2, 2004: Christopher was enrolled at Time Out for Parents.
17. April 20, 2004: the mother obtained furniture from Covenant to Care.
18. June 24, 2004 through November 4, 2004: parent aide, Klingberg Family Services. A goal was for the mother to improve her discipline techniques, and that goal was reported to have been met. Another goal was for the mother to increase her knowledge of and to promote her use of community resources, and such goal was "moderately achieved." A third goal was for the mother to develop a social network, and the mother made "moderate progress" on that goal.
19. July 23, 2004: grief counseling for Christine and Christopher, Catholic Family Services.
20. November 4, 2004: reunification visits between the mother and Christal, Klingberg Family Services Visitation Center.
21. February 25, 2005 to May 24, 2005: reunification services, Abundant Family Center. Service completed. Christal reunified on April 13, 2005.
22. May 31, 2005, through August 15, 2005: family preservation services, Abundant Life. The goal was for the mother to be able to "meet Christal's transitional needs. Christal was exhibiting some transitional difficulties. She would stand still until told what to do, would separate from her siblings during activities, and was unable to tell when she had enough to eat."
23. October 18, 2005: participation in mother's overcoming and managing stress, UCONN research study.
24. November 16, 2005 to February 3, 2006: Intensive Family Preservation, My People Clinical Services. "The mother had symptoms of depression, but was not receptive to treatment. She informed the IFP worker that she had her own way of dealing with depression."
25. January 19, 2006: employment workshop, St. Francis Hospital.
26. January 30, 2006: early childhood assessment of Christal, Hartford Board of Education.
27. April 3, 2006: common sense parenting, Clark School.
28. June 21, 2007 to January 2008: visitation services, DCF.
29. October 8, 2007 to 2008: individual therapy, My People Clinical Services. As of July 14, 2008, the mother had "begun to make some progress in addressing her past trauma." After such date, the mother returned to her former therapist for trauma-based therapy, and the My People services were terminated.
30. December 2007 to present: reunification services, including supervised visitation, Casey Family Services. As of July 14, 2008, Casey Family Services was not recommending reunification, and after such date it terminated such services to the family.
31. January 24, 2008 to present: the mother was offered parent guidance sessions with the therapists for two of her children. Mother attended one session with each therapist, but did not accept their offers for further sessions.
32. January 2008 through March 2008: common sense parenting classes through Rambuh Center. The mother completed classes. "Her reunification worker accompanied her and processed the information with her [after each of such classes]. The mother has been unable to demonstrate the skills learned in class during visits with her children."
33. June 2, 2008: court-ordered psychological evaluations of the mother and of Christal. Also, such examiner performed an evaluation in 2002.
Additionally, the mother was provided with
transportation;
supervised visitation; and
administrative and case management services.
(B) In addition to the services described above, each of the children has been offered and has received the following services from or facilitated by DCF, inter alia:
medical and dental services plus an MDE;
reunification services;
supervised visitation; transportation;
foster care services;
counseling;
psychiatric/psychological services; court-ordered psychological evaluation (Christal);
and administrative and case management services.
All services offered to the mother and to each of the children have not been identified as not reasonably timely under the circumstances.
2. Whether DCF has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980 as amended.DCF has made reasonable efforts to reunite the mother and each of the children. See 1. above, and other discussions of reasonable efforts throughout this memorandum of decision. The reasonable efforts made and facilitated by DCF with respect to services for the mother were timely and adequate to address the issues that led to DCF involvement with her and to address the issues that continued or arose after such DCF involvement. Unfortunately, she was unable to appreciate, understand and/or accept the existence of her personal and parenting problems, and to acknowledge her continuing and extensive need for services.
3. The terms of an applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order(s).On October 2, 2007, inter alia, the court ordered specific steps for the mother "to safely . . ." regain the custody of each such child.
The mother did comply with some of the steps, including cooperation with court-ordered evaluations. Unfortunately for the mother, after such evaluation the examiner determined that the mother had "pervasive psychological problems that impede her ability to effectively parent children." (Exhibit 3, 5.) Although the very experienced examiner had examined only the mother and Christal, after such examination he became "concerned that irreparable psychological harm will befall any children placed in her care." Id. Such examiner conflated the mother's inability to confront her own childhood trauma with "the repeated, extreme abuse of her own children." Id.
In 2008 the mother was unable to confront and to deal with her latest pregnancy. Id. She was unable to see the impact of her responsibilities for a newborn on her ability to reunify with one or more of the children. Id.
In July 2008, the DCF worker who visited the mother at her home described the conditions therein as "very poor." Id., 6. She noted that "[t]he home was extremely cluttered, with baskets and crates full of clothing and other items piled throughout the home." Id. These conditions persisted although the four children had not been living with the mother for a year prior to the worker's visit. The worker also noted that the mother had no phone service, there were extension cords running through the home and "[t]here were small flying insects throughout the apartment, and a large swarm of them flying in the kitchen." Id. There were also "cockroaches visible in the food pantry." Id. The mother used a dryer with no ventilation to the outside of the apartment. Id. The mother's inability to maintain a clean and safe home for herself and the children was a longstanding problem:
[The mother's] interest in maintaining her home and approach to feeding and interacting with her children continue to present concern. More recently, her attempts to follow through with suggestions are decreasing.
(Exhibit 8, 4.) However, the mother did not recognize and accept this obvious concern. See reunification services July 2008, statement (exhibit 8, 3):
When confronted with this concern, [the mother] reports she does not share the concern.
During the worker's July 2, 2008, visit, the mother also stated that she would defend herself from domestic violence as follows: "I'm the type of person that will go into the kitchen and get a knife and cut you." (Exhibit 3, 5.)
On July 11, 2008, the DCF worker notified the mother that DCF had invoked an administrative hold on the mother's newborn child. Id., 8. The mother demonstrated her inability to understand and accept her responsibility for and to deal with her issues resulting in the removal of her four other children by stating to the worker that it was DCF's fault that such children had not been returned to her by such date. Id.
Prior to the filing of the TPR petitions, the mother failed to make progress in counseling and toward the goals for the in-home support services that were provided to her. (Exhibit 2, 14.) She did not cooperate with therapy for Christine and Christal related to possible reunification. Id., 15. The reunification worker reported to DCF concerns about the mother's parenting including that the mother "did not seem to recognize or respond to the children's needs . . ." Id. In July 2008, the reunification service closed its case because of the mother's lack of progress. Id. On July 3, 2008, the reunification worker had reported to DCF as follows:
As communicated in our recent report we are not recommending reunification for [the mother's] four children, due to continued concern for her mental and emotional instability and observed inability to meet her children's physical and emotional needs. Our assessment indicates these concerns pose a safety risk for children in [the mother's] care and should be taken into consideration for the need for support of [the mother's] new baby . . .
(Exhibit 7.)
The reunification worker also determined that the mother had mental illness that may place her children at risk. [The mother] continues to present concern for unresolved trauma she experienced in her childhood which appears to affect the way she parents her children.
(Exhibit 8, 4.) Such reunification worker also determined:
[The mother] has endured a significant history of abuse and neglect which have affected her ability to trust. She reports the only people she has trusted are all dead. [The mother's] current family relationships are questionable and may place her children at risk given the family history, limited healthy resources within the family, [the mother's] lack of trust and her mental instability.
Id., 5.
4. The feelings and emotional ties of such child with respect to his or her parents, any guardian of the 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.As of the dates of the trial, Christine and Christopher were bonded to their mother, but not in a meaningful parent-child way. Shade was also bonded to the mother but she had less experience in the care of the mother, and more of her life proportionately has been spent in the care of her paternal grandparents. Christal is afraid of her mother, and while she visits with her when the other children visit, she would be fearful and uncomfortable if she had to visit with the mother alone. Some of the children (primarily Christine and Shade) have expressed a desire to return to live with the mother if she would stop "yelling and screaming" at them.
As of the dates of the trial, each such child was bonded to the foster parents, who are the paternal grandparents, with whom they have resided since July 2007. Such foster parents provide a positive, stable environment, and they currently provide for her needs of each child, and faithfully bring them to the services they require.
5. The age of each of the children:
Christine is ten years old.
Christopher is eight years old.
Christal is six years old.
Shade is five years old.6. The efforts each parent has made to adjust his or her circumstances, conduct or conditions to make it in the best interests of the children to return home in the foreseeable future.
As set forth above, the mother has not been able to adjust her circumstances, conduct or conditions to make it in the best interests of the children to return home to her in the foreseeable future. She continues to present a danger to their health, welfare and safety.
7. The extent to which a parent has been prevented from maintaining a meaningful relationship with the children by the unreasonable act or conduct of the other parent of, the children or the unreasonable act of any other person or by the economic circumstances of the parent.There was no evidence presented that the mother has been prevented from maintaining a relationship with any of the children by any unreasonable act or conduct of any other person. Although the court had some information, the mother did not provide specific information in a financial affidavit format concerning her or his current or past economic circumstances. The mother has not paid support for any of the children or regularly provided clothes or other items to any of the children since their June 2007, removal.
LAW APPLICABLE TO TERMINATION OF PARENTAL RIGHTS CASES:
General Statutes § 17a-93 (and General Statutes § 45a-707(8)) provide:
"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 his parent or parents so that the child is free for adoption except it shall not affect the right of inheritance of such child or the religious affiliation of such child . . .
1. Prerequisites to a TPR determination, and the statutory grounds alleged by the petitioner DCF:
General Statutes § 17a-112(j)(3) provides that the prerequisites to a determination that any TPR petition should be granted are that the court must find by clear and convincing evidence
(1) that [DCF] has made reasonable efforts to locate the parent and to reunify the child with the parent in accordance with subsection (a) of section 17a-111b, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts, except that such finding is not required if the court has determined at a hearing pursuant to section 17a-111b, or determines at trial on the petition, that such efforts are not required . . .
and that
(2) termination is in the best interest of the child . . .
In this case, each parent was unable or unwilling to benefit from reunification efforts.
The third requirement is that the court find, by clear and convincing evidence, that DCF has proved at least one of seven statutory grounds for termination. In re Melody L., 290 Conn. 131, 163 (2009); In re Davonta V., 98 Conn.App. 42, 43 (2006), affirmed, 285 Conn. 483 (2008); In re Shaun B., 97 Conn.App. 203, 214, 903 A.2d 246 (2006); In re Brett B., 75 Conn.App. 466, 473, 816 A.2d 707 (2003).
The grounds alleged in this case are:
. . . (B) the child (i) has been found by the Superior Court or the Probate Court to be neglected or uncared for in a prior proceeding . . . 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 . . . (C) the child has been denied, by reason of an act or acts of parental commission or omission including, but not limited to, sexual molestation or exploitation, severe physical abuse or a pattern of abuse, the care, guidance or control necessary for the child's physical, educational, moral or emotional well-being, except that nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights . . . (F) the parent has killed through deliberate, nonaccidental act another child of the parent or has requested, commanded, importuned, attempted, conspired or solicited such killing or has committed an assault, through deliberate, nonaccidental act that resulted in serious bodily injury of another child of the parent . . .
General Statutes § 17a-112(j)(3).
Despite the order in General Statutes § 17a-112(j) in which the statutory prerequisites to be proved are set forth, prior to any termination of parental rights
[i]f 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. 674, 689, 741 A.2d 873 (1999).
2. Explanation of Ground B, failure to rehabilitate:
A. General standards:
In In re Halle T., 96 Conn.App. 815, 835, 902 A.2d 670 (2006), cert. denied, 280 Conn. 924 (2006), the Appellate Court explained the failure to rehabilitate requirements as follows:
Failure to achieve a sufficient degree of personal rehabilitation is one of the seven statutory grounds on which parental rights may be terminated under § 17a-112(j)(3). We have stated that [p]ersonal 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 . . . [Section 17a-112] 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.
Rehabilitate means to restore [a . . . delinquent person] to a useful and constructive place in society through social rehabilitation . . . The statute does not require [a parent] to prove precisely when she will be able to assume a responsible position in her child's life. Nor does it require her to prove that she will be able to assume full responsibility for her child, unaided by available support systems. It requires the court to find, by clear and convincing evidence, that the level of rehabilitation she has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date she can assume a responsible position in her child's life . . . (Emphasis in original.)
See also In re Melody L., supra, 290 Conn. at 149-50.
In Halle T., the Appellate Court explained the foregoing finding requirement concerning a parent's level of rehabilitation to assume a responsible position in the child's life as follows:
[T]he adjudicatory determination to be made by the trial court is whether the parent of a child who has been found by the [S]uperior [C]ourt to have been neglected [or] uncared for in a prior proceeding 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 . . . In conducting this inquiry, the trial court must analyze the respondent's rehabilitative status as it relates to the needs of the particular child . . .
"Although the standard is not full rehabilitation, the parent must show more than any rehabilitation . . . Successful completion of the petitioner's expressly articulated expectations is not sufficient to defeat the petitioner's claim that the parent has not achieved sufficient rehabilitation . . . [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 . . . Thus, even if a parent has made successful strides in her ability to manage her life and may have achieved a level of stability within her limitations, such improvements, although commendable, are not dispositive on the issue of whether, within a reasonable period of time, she could assume a responsible position in the life of her children." (Citations omitted; emphasis added; internal quotation marks omitted.) In re Alejandro L., 91 Conn.App. 248, 259-60, 881 A.2d 450 (2005); see also In re Amneris P., 66 Conn.App. 377, 383-84, 784 A.2d 457 (2001); In re John G., 56 Conn.App. 12, 17-18, 740 A.2d 496 (1999).
In re Halle T., supra, 96 Conn.App. at 835-36. The same point is also set forth in In re Shyliesh H., 56 Conn.App. 167, 179-80, 743 A.2d 165 (1999) and in In re Danuael D., 51 Conn.App. 829, 840, 724 A.2d 546 (1999).
The "petitioner's expressly articulated expectations" are the specific steps. In Practice Book § 26-1(n), "specific steps" are defined as "those judicially determined steps the parent or guardian and the commissioner of children and families should take in order for the parent or guardian to retain or regain custody of a child or youth." While DCF has a statutory duty to attempt to reunify children with parents, see General Statutes § 17a-112(j), the specific steps pertain only to allegations of failure to reunify, see General Statutes § 17a-112(j)(3)(B).
In Halle T., the Appellate Court also referred to Supreme Court statements of the applicable standard:
Our Supreme Court has instructed that the applicable standard in these types of cases "requires the court to find, by clear and convincing evidence, that the level of rehabilitation [a parent] 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." (Internal quotation marks omitted.) In re Eden F., 250 Conn. 674, 706, 741 A.2d 873 (1999); see also In re Jeisean M., 270 Conn. 382, 399, 852 A.2d 643 (2004); In re John G., supra, 56 Conn.App. 17; In re Juvenile Appeal (84-3), 1 Conn.App. 463, 477, 473 A.2d 795, cert. denied, 193 Connn. 802, 474 A.2d 1259 (1984). A finding of when the respondent would be able to resume caring for the child was required neither by statute nor by case law. Instead, the court properly examined whether, "within a reasonable time, considering the age and needs of the child, [the] parent could assume a responsible position in the life of the child . . ." (Internal quotation marks omitted.) In re John G., supra, 17.
In re Halle T., supra, 96 Conn.App. at 837.
The Appellate Court then focused on the importance in each case of the factual context of the child's circumstances:
We recently emphasized the importance of conducting this inquiry by considering the factual context of the particular child's situation. " The trial court must also determine whether the prospects for rehabilitation can be realized within a reasonable time given the age and needs of the child . . . What constitutes a reasonable time is a factual determination that must be made on a case-by-case basis." (Citation omitted; emphasis added; internal quotation marks omitted.) In re Alejandro L., supra, 91 Conn.App. 260; see also In re Eden F., supra, 250 Conn. 706; In re Christina V., 38 Conn.App. 214, 220-21, 660 A.2d 863 (1995); see also In re Shyliesh H., 56 Conn.App. 167, 173-74, 743 A.2d 165 (1999) (respondent's failure to achieve rehabilitation illustrated by lack of understanding of child's medical, psychiatric condition).
In re Halle T., supra, 96 Conn.App. at 837-38.
Finally, the Appellate Court noted that in a number of cases despite a parent's progress toward personal rehabilitation the parent had not rehabilitated sufficiently to have the child returned and to avoid a termination of parental rights:
The court acknowledged the evidence that the respondent had made some progress in personal rehabilitation. Nevertheless, when viewed in the light of the child's significant needs, such progress, made over approximately two years, was insufficient when considered in relation to the child's special needs and her need for permanency. Our case law contains numerous examples of a parent, who, despite an admirable attempt, was unable to achieve rehabilitation sufficiently and, as a result, lost his or her parental rights. See, e.g., In re Vanna A., supra, 83 Conn.App. 22-25; In re Sheila J., supra, 62 Conn.App. 479-82 (respondent's efforts at rehabilitation too little, too late and court's finding that she failed to achieve sufficient rehabilitation despite some level of stability not clearly erroneous); In re Shyliesh H., supra, 56 Conn.App. 172-75 (although respondent testified that he loved child, trial court's finding that he lacked insight, responsibility to cope with her significant psychiatric disorder supported determination of failure to achieve rehabilitation).
In re Halle T., supra, 96 Conn.App. at 838-39 (footnote omitted). In addition to Sheila J., 62 Conn.App. 470, 481, 771 A.2d 244 (2001) (". . . In effect, however, the court determined that although the respondent demonstrated some efforts and had taken some steps toward rehabilitation, those efforts were too little and too late . . ."), the Appellate Court has upheld other trial court findings of rehabilitation efforts being "too little, too late . . .": see In re Brittany J., 100 Conn.App. 329, 335, 917 A.2d 1024 (2007) (". . . The court also found the testimony of James Connolly, a court-appointed psychologist, to be more credible on this issue and noted that the respondent's `recent cooperation with her psychotropic medication regimen on the eve of trial is `too little, too late' . . .'") and In re Dorrell R., 64 Conn.App. 455, 780 A.2d 944 (2001).
Although the court can consider rehabilitation efforts occurring after the filing of the TPR petition, it does not have to do so, and the court can determine that from the perspective of the age, needs and circumstances of the child and the usual application of Practice Book § 35a-7A that those efforts are not timely:
The court found by clear and convincing evidence that the respondent is unable or unwilling to make realistic and sustained efforts to conform her individual conduct to acceptable parental standards. The department made numerous referrals for the respondent during the pendency of this case. The respondent failed to take advantage of the referrals in a timely manner, and it was not until the filing of the termination petitions that she demonstrated any willingness to address her problems. The respondent has not made the changes necessary in her lifestyle in a timely manner that would indicate that she would be a safe, responsible and nurturing parent for the children.
In re Anthony H., 104 Conn.App. 744, 758 (2007), cert. denied, 285 Conn. 920, 943 A.2d 1100 (2008).
The presence of a "strong loving bond" or a "strong bond" between a parent and a child in and of itself may not be sufficient to prevent termination of parental rights. In the Anthony H. decision, the Appellate Court considered substantive issues that kept the mother from "being a responsible parent to the children" despite a claim of a "strong loving bond":
The respondent also argues that the court's finding that she had failed to achieve rehabilitation is clearly erroneous because she has a strong loving bond with her children. The respondent relies on dicta in In re Jessica M., 49 Conn.App. 229, 714 A.2d 64 (1998), appeal dismissed, 250 Conn. 747, 738 A.2d 1087 (1999), to support her position. "[T]o the extent the parents can demonstrate to [the child] that they care about her and love her, they have a responsible position in her life." Id., 240. The respondent claims that she has a responsible position in the lives of the children by virtue of her strong loving bond with them. The respondent's argument founders because she has multiple issues that prevent her from being a responsible parent to the children, such as failing to provide appropriate and reliable housing, failing to maintain employment and failing to keep them safe from R., who is abusive and has substance abuse problems, among other concerns.
In re Anthony H., supra, 104 Conn.App. at 762-63 (footnotes omitted). See also In re Anna Lee M., supra, 104 Conn.App. at 124, 143-44; In re Brittany J., supra, 100 Conn.App. at 333, 336-37; In re Tyqwane V., 85 Conn.App. 528, 533, 535-36 (2004). In a recent case, former Justice Peters observed:
The sad fact is that there is a difference between parental love and parental competence.
In re Christina M., 90 Conn.App. 565, 575, 877 A.2d 941, affirmed, 280 Conn. 474, 908 A.2d 1073 (2006).
The Appellate Court has stated that evaluating whether there has been sufficient parental rehabilitation the trial court must consider the full history of the respondent's parenting abilities:
. . . The court, however, makes an inquiry into the full history of the respondent's parenting abilities. In re Galen F., 54 Conn.App. 590, 594, 737 A.2d 499 (1999) . . .
In re Jennifer W., 75 Conn.App. 485, 499, 816 A.2d 697 (2003), cert. denied, 263 Conn. 917, 821 A.2d 770 (2003); see also In re Victoria B., 79 Conn.App. 245, 254, 829 A.2d 855 (2003).
In an earlier decision, In re Tabitha P., 39 Conn.App. 353, 361, 664 A.2d 1168 (1995) the Appellate Court expressed this requirement as follows:
. . . Thus, the trial court's inquiry requires the determination of both the present and past status of the child, and obtaining a historical perspective of the respondent's child caring and parenting abilities . . .
See also In re Emerald C., 108 Conn.App. 839, 858-59 (2008).
In a very recent decision, the Appellate Court has expressed the trial court's duty to consider the "entire picture" of the parent-child relationship:
In order for the court to make a determination as to the respondent's prospects for rehabilitation, the court was required to obtain "a historical perspective of the respondent's child caring and parenting abilities." In re Tabitha P., 39 Conn.App. 353, 361, 664 A.2d 1168 (1995). "Because the parent-child relationship is at issue, all relevant facts and family history should be considered by the trial court when deciding whether to terminate the respondent's parental rights . . . The parent-child relationship presents an ongoing dynamic that cannot be frozen in time. The entire picture of that relationship must be considered whenever the termination of parental rights is under consideration by a judicial authority." In re Brianna F., 50 Conn.App. 805, 814, 719 A.2d 478 (1998). Finally, "[t]o preclude consideration of the facts existing at the time of [a prior termination of parental rights proceeding] would not allow for a comprehensive analysis of the parent-child relationship." Id., 818.
In re Anna Lee M., 104 Conn.App. 121, 123 (2007), cert. denied, 284 Conn. 939 (2007).
In a dissolution of marriage context the requirement of an inquiry into the full history of the parents' "past behavior" in order to evaluate parenting ability has been expressed as follows:
Nevertheless, our Supreme Court has also held that the court must . . . take account of the parents' past behavior, since it must evaluate their present and future parenting ability and the consistency of their parenting for the purpose of determining which parent will better foster the [child's] growth, development and well-being. Yontef v. Yontef, 185 Conn. 275, 283, 440 A.2d 899 (1981).
Gil v. Gil, 94 Conn.App. 306, 322, 892 A.2d 318 (2006) (internal quotations omitted).
This court, however, cannot speculate about a parent's chances for future rehabilitation by assuming, for example, that a parent successfully would complete a parenting-related program, obtain independent housing in the future, or earn a legal income sufficient to support himself or herself and the child. In In re Selena O., 104 Conn.App. 635, 642-43 (2007), the trial court found that the mother could be rehabilitated within a reasonable period of time in the future. The Appellate Court determined that the trial court's findings were based on facts that were not in evidence, and on a fact that did not exist. Id., 648-49. The trial court's findings were speculative, material to its decision and clearly erroneous. Id.
B. Ground B exception to the usual rule that in the adjudicatory phase, the judicial authority is limited to evidence of events occurring prior to the filing of the TPR petition, as amended, to be applied in the discretion of the trial court: CT Page 6294Connecticut Practice Book § 35a-7A, effective January 1, 2009, provides that
(a) In the adjudicatory phase, the judicial authority is limited to evidence of events preceding the filing of the petition or the latest amendment, except where the judicial authority must consider subsequent events as part of its determination as to the existence of a ground for termination of parental rights.
(b) In the discretion of the judicial authority, evidence on adjudication and disposition may be heard in a non-bifurcated hearing, provided disposition may not be considered until the adjudicatory phase has concluded.
In In re Latifa K., 67 Conn.App. 742, 748-49, 789 A.2d 1024 (2002), the Appellate Court explained the language of Conn. Practice Book § 33-3(a), the predecessor of § 35a-7 and § 35a-7A, as follows:
". . . A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition." (Internal quotation marks omitted.) In re Roshawn R., 51 Conn.App. 44, 52, 720 A.2d 1112 (1998). "In the adjudicatory phase of termination proceedings, the court determines the validity of the grounds alleged in the petition, and therefore is limited to events preceding the filing date of the petition. In the disposition phase, the court is concerned with what action should be taken in the best interests of the child, and in that phase the court is entitled to consider facts occurring until the end of the trial." In re Romance M., 30 Conn.App. 839, 859, 622 A.2d 1047 (1993), appeal dismissed, 229 Conn. 345, 641 A.2d 378 (1994).
Despite Practice Book § 33-3(a) and case law regarding termination proceedings generally, we have determined that with regard to termination petitions brought under § 17a-112(c)(3)(B) [now § 17a-112(j)(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 In re Stanley D., we addressed a claim that the trial court improperly found that the respondent had not achieved sufficient personal rehabilitation within the meaning of § 17a-112(c)(3)(B). Id., 225, 763 A.2d 83. In our explanation of the requirements of § 17a-112(c)(3)(B) and the hearing process for petitions to terminate parental rights based on that section, we stated that "`[p]ersonal rehabilitation' refers to the reasonable foreseeability of the restoration of a parent to his or her former constructive and useful role as a parent, not merely the ability to manage his or her own life . . . In 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." (Citation omitted; emphasis in original.) Id., 230. The respondent, therefore, cannot prevail on his claim that the court could not consider whether he had achieved personal rehabilitation during the eighteen months subsequent to the filing of the petitions.
See also In re Anthony A., 112 Conn.App. 643, 649 (2009); In re Cheila R., 112 Conn.App. 582 (2009); In re Joseph L., 105 Conn.App. 515, 527-28 (2008); and In re Anthony H., supra, 104 Conn.App. at 757-58.
In Ground (B) cases, a court may consider events subsequent to the filing date of the petitions, but it does not have to do so:
. . . This court has expanded that rule [set forth in § 35a-7A] to allow courts to consider events subsequent to the filing date of the petitions in the adjudicatory phase of termination proceedings. "Practice Book § 33-3(a) [now § 35a-7A] limits the time period reviewable by the court in the adjudicatory phase to the events preceding the filing of the petition or the latest amendment . . . In 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." (Citations omitted; emphasis added; internal quotation marks omitted.) In re Stanley D., supra, 61 Conn.App. at 230; see In re Amber B., 56 Conn.App. 776, 785, 746 A.2d 222 (2000). The respondent's appeal challenges the evidence that a court must consider during the adjudicatory phase of the proceedings. The respondent argues that because this court has stated that trial courts may, in their discretion, consider such evidence, fundamental fairness requires the trial court to consider those events that take place up until the hearing. We do not agree with the respondent.
In re Jennifer W., supra, 75 Conn.App. at 494-95; see also In re Selena O., 104 Conn.App. 635, 646 (2007) and In re Nelmarie O., 97 Conn.App. 624, 628, 905 A.2d 706 (2006).
C. The relationship between a respondent's compliance with the "specific steps" and whether there is "sufficient rehabilitation":
General Statutes § 46b-129, pertaining to neglect and orders of temporary custody, contains three references to "specific steps." The first reference is in subsection (b):
. . . Upon issuance of an ex parte order, the court shall provide to the commissioner and the parent or guardian specific steps necessary for each to take to address the ex parte order for the parent or guardian to retain or regain custody of the child or youth . . .
The second reference is in subsection (d):
. . . The court, after a hearing pursuant to this subsection [relating to the preliminary hearing on the order of temporary custody or order to appear or the first hearing on a petition filed pursuant to § 46b-129(a) pertaining to neglect, uncared-for or dependency petitions] shall order specific steps the commissioner and the parent or guardian shall take for the parent or guardian to regain or to retain custody of the child or youth . . .
The third reference is in subsection (j) which provides that if a child is committed to DCF after being adjudicated neglected or uncared for "the court shall order specific steps that the parent must take to facilitate the return of the child or youth to the custody of such parent."
Practice Book §§ 33a-6 and 33a-7 also contain similar references to the issuance of specific steps by the court at the time of the issuance of an ex parte order of temporary custody and at the preliminary hearing. Practice Book § 33a-6(d) provides:
. . . (d) Upon issuance of an ex parte order or order to appear, the judicial authority shall provide to the commissioner of the department of children and families and the respondents specific steps necessary for each to take for the respondents to retain or regain custody of the child or youth . . .
Practice Book § 33a-7 provides:
(a) At the preliminary hearing on the order of temporary custody or order to appear, or at the first hearing on a petition for neglect, uncared for, dependency, or termination of parental rights, the judicial authority shall: . . . (8) make any interim orders, including visitation, that the judicial authority determines are in the best interests of the child or youth, and order specific steps the commissioner and the respondents shall take for the respondents to regain or to retain custody of the child or youth . . .
General Statutes § 17a-112(j)(3)(B), pertaining to termination of parental rights, provides in part with respect to specific steps:
The Superior Court, upon notice and hearing as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that . . . (3) . . . (B) the child (i) has been found by the Superior Court or the Probate 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 . . . (Emphasis supplied.)
Although because of the presence of a comma after "proceeding" and the absence of a comma after "fifteen months" such subsection can be read so that the specific steps requirement applies only in Ground B(ii) cases (and not in the much more common Ground B(i) cases), the usual practice in this court accepted by DCF and all other parties is to apply the specific steps requirement to such Ground B(i) cases.
The official form petition for termination of parental rights utilized by DCF (JD-JM-40 Rev. 9-2006) separately sets forth Ground B(i) and Ground (B)(ii) bases for termination, so that DCF can select one, the other or both as a basis for termination.
The Supreme Court has emphasized the importance of compliance by each respondent with the specific steps:
The specific steps that a respondent and DCF must follow in order to provide an opportunity for reunification. Although the present appeal does not concern a termination proceeding, we note that specific steps are considered to be "fair warning" to a parent of the potential termination of parental rights in subsequent proceedings. In re Jeffrey C., 64 Conn.App. 55, 62, 779 A.2d 765 (2001), rev'd on other grounds, 261 Conn. 189, 802 A.2d 772 (2002).
Indeed, the failure to comply with specific steps ordered by the court typically weighs heavily in a termination proceeding . . .
In re Devon B., 264 Conn. 572, 584 (2003).
The Appellate Court has explained that successful completion of the specific steps, e.g., "petitioner's expressly articulated expectations," is, by itself, "not sufficient to defeat the petitioner's claim that the parent has not achieved sufficient rehabilitation. In re Vincent D., supra, 65 Conn.App. at 670, 783 A.2d 534." In re Jennifer W., supra, 75 Conn.App. at 500. In Vincent D., the Appellate Court explained:
In 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 . . . Accordingly, successful completion of expressly articulated expectations is not sufficient to defeat a department claim that the parent has not achieved sufficient rehabilitation . . .
In re Vincent D., 65 Conn.App. 658, 670, 783 A.2d 534 (2001) (citations omitted). See also In re Melody L., supra, 290 Conn. at 150-51.
4. Ground (C), acts of commission or omission:
In In re Rachel J., 97 Conn.App. 748, 754-55 (2006), cert. denied, 280 Conn. 941, 912 A.2d 476 (2006), the Appellate Court discussed Ground C in the context of coterminous neglect and TPR petitions:
The court issued a thorough and well-reasoned memorandum of decision on June 3, 2005, in which it found that there was ample evidence that R. and N. were neglected in that they were denied proper care and attention and permitted to live under conditions or associations injurious to their well-being. The court found that "the extreme injury inflicted on [R.], and [the respondent's] subsequent failure to obtain medical treatment for many days amounted to a denial of proper care and attention of both children . . . [R.] has been abused and received a serious physical injury that was inflicted by other than accidental means." In addition, the court found that the respondent exposed R. to sexual abuse. It stated: "Whether the abuse was perpetrated by [the respondent] or by [F.] as [the department] originally believed, in either instance, both children were ommitted to live in a home where sexual abuse occurred. [R.'s] significant behavioral problems demonstrate the serious effect the abuse has had on [R.]." As to N., the court specifically found that "the domestic violence and physical and emotional abuse of [R.] created an environment in the home such that [N.] was denied proper care and attention physically, educationally, emotionally or morally and was permitted to live under conditions, circumstances or associations injurious to her well-being." The court further found that "the fact that [the respondent] severely injured [R.] after entering into [two service] agreements is further evidence that the children were neglected."
Finding that both children were neglected, the court turned its attention to the termination petitions. As to R., the only ground alleged in the termination petition was that the respondent, as a result of sexual molestation and severe physical abuse on her part, denied R. the care, guidance or control necessary for her physical, educational, moral or emotional well-being under § 17a-112(j)(3)(C). The court found by clear and convincing evidence that R.'s injuries at the hands of the respondent constituted nonaccidental serious physical injuries to a child. It found further that the respondent's "failure to obtain medical treatment for [R.] for days after the injury constituted an act of parental omission that . . . denied her the care, guidance and control necessary for her well-being. Moreover, [the respondent] only took [R.] for treatment after learning that the department worker] and [the] father were planning to see [R.] the following day." The court found that, in addition to serious physical injury, R. suffered serious emotional injury and sexual abuse while living with the respondent. Accordingly, the court concluded that the respondent denied R., by reason of acts of parental commission and omission, the care, guidance or control necessary for her physical, educational, moral or emotional well-being.
In another recent decision, In re Nelmarie O., 97 Conn.App. 624, 626-27, 905 A.2d 706 (2006), the Appellate Court also affirmed a Ground C basis for the termination of parental rights upon the following summary of facts:
The court found that [children] N. and Y. had seen the respondent and the father abuse [another child] E. [who eventually died], and that the respondent had ordered N. and Y. to hit E. with a sandal. There was no evidence, however, that the respondent and the father physically had abused N. and Y. The court nonetheless found that the respondent and the father had failed to provide N. and Y. with "a safe home environment free of violence" and accordingly granted the petitions for neglect and termination of parental rights . . .
In Nelmarie the Appellate Court discussed the portion of Ground C that refers to a parent's failure to provide for the emotional well-being of a child:
The respondent next claims that the court improperly found that she had failed to provide for the emotional well-being of N. and Y. pursuant to § 17a-112(j)(3)(C). In support of her claim, the respondent points out that she did not physically abuse N. and Y. and that she was not the biological mother or legal guardian of E. Section 17a-112(j), however, provides in relevant part that the court `may grant a petition [for termination of parental rights] if it finds by clear and convincing evidence . . . (3) that . . . (C) the child has been denied, by reason of an act or acts of parental commission or omission including, but not limited to . . . the care, guidance or control necessary for the child's physical, educational, moral or emotional well-being . . .' That statute does not require that the children who are the subjects of the termination petition be abused physically. See In re Sean H., 24 Conn.App. 135, 144, 586 A.2d 1171, cert. denied, 218 Conn. 904, 588 A.2d 1078 (1991). Furthermore, the respondent's relationship with E. is not relevant to her claim. See id., 143-46. We conclude that the court properly found that the respondent had failed to provide for the emotional well-being of N. and Y. by abusing E. in their presence and ordering them to participate in the abuse.
In re Nelmarie O., supra, 97 Conn.App. at 628-29 (fn omitted).
Other decisions where trial court findings that DCF proved Ground C as a basis for termination of parental rights include:
1. In re Clark K., 70 Conn.App. 665, 676, 799 A.2d 1099 (2002): . . . The court found, and the evidence is clear and convincing, that "the respondent deliberately and `nonaccidentally' slammed [M.'s] head against the floor on September 11, 1998." The resulting fracture of the skull, as testified about by Spivack, caused impaired functioning of the brain, seizures and the potential for permanent brain injury or death . . .
2. In re Sheena L., 63 Conn.App. 713, 722-23, 778 A.2d 997 (2001):
. . . Second, the petitions alleged acts of parental commission or omission by the respondent pursuant to General Statutes (Rev. to 1999) § 17a-112(c)(3)(C). In regard to this ground for termination of parental rights, the court found, by clear and convincing evidence, that the respondent had burned S.'s arms and that she had engaged in acts of parental commission and omission in terms of her lengthy absences from home, her knowledge of the neglect and abuse inflicted on her children by J.'s father and her failure to take steps to protect her children from such abuse. The court further found, by clear and convincing evidence, that those acts seriously injured the children . . .
(Footnote omitted.)
3. In re Jonathan M., 255 Conn. 208, 213, 764 A.2d 739 (2001):
. . . The court also determined by clear and convincing evidence that the ongoing drug use had served to deny Jonathan, by reason of acts of parental commission and omission, the care, guidance and control necessary for his well-being. The court terminated the parental rights of both the mother and the petitioner, concluding that "neither [the petitioner] nor [the mother] is able to care for their son in the foreseeable future . . . Jonathan needs the stability and consistency that are provided in [the foster] home.
4. In re David W., 254 Conn. 676, 684 (2000), where the Supreme Court reversed the Appellate Court's ruling on an issue of ex parte contact concerning a psychological evaluation and reinstated the trial court's decision that DCF had proved a violation of Ground C:
The trial court concluded that the respondents' inability to acknowledge and accept responsibility for the injuries, despite years of therapy, was a deficiency that "goes to the very issue of safety and well-being of the child. This is not an issue that can be carefully skirted in therapy." The court accepted and adopted Mantell's observations concerning the failure of the respondents to acknowledge or accept responsibility for their actions in seriously injuring their own child. The court also ruled that the acts of parental omission and commission were the "most applicable" ground for termination.[fn 3]
In footnote 3, the Supreme Court set forth the trial court's rationale for finding a violation of General Statutes § 17a-112(j)(3)(C):
The trial court explained: "Here the child has been clearly exposed to nonaccidental or inadequately explained serious physical injury. The father has obliquely suggested that he possibly did something harmful. The mother has, at a minimum, failed to protect the child. After nearly four years, the parents are only marginally able to deal with their responsibility for, if not participation in those injuries. The court finds that this ground has been proven by clear and convincing evidence."
5. In re Cheyenne A., 59 Conn.App. 151, 158-59, 756 A.2d 303 (2000):
"The phrase prima facie evidence means evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove." (Internal quotation marks omitted.) State v. Watson, 165 Conn. 577, 595-96, 345 A.2d 532 (1973), cert. denied, 416 U.S. 960, 94 S.Ct. 1977, 40 L.Ed.2d 311 (1974). This court has previously dealt with a similar challenge to the termination of parental rights in In re Juvenile Appeal (85-2), 3 Conn.App. 184, 485 A.2d 1362 (1985), in which we stated, "The respondent's final claim is that the court erred in finding that the petitioner proved by clear and convincing evidence that the children had been denied by reason of acts of parental commission or omission the care necessary for their general well-being . . . The essence of the respondent's claim in this regard is that direct evidence as to any acts of commission or omission was lacking and that the judgment rested upon speculation and inference.
"While it is true that evidence of the respondent's acts of omission was largely circumstantial, that evidence was sufficient. The law does not distinguish between direct and circumstantial evidence as far as probative force is concerned. State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984). The standard of clear and convincing proof used in this case denotes a degree of belief that lies between the belief that is required to find the truth or existence of the issuable fact in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution. Dacey v. Connecticut Bar Ass'n., 170 Conn. 520, 536-37, 368 A.2d 125 (1976). In a criminal case, the jury may draw reasonable, logical inferences from the facts proven as long as they do not resort to speculation and conjecture. State v. Festo, 181 Conn. 254, 259, 435 A.2d 38 (1980). In a case involving substantial circumstantial evidence, the cumulative impact of a multitude of facts, and not any one fact, may establish guilt. State v. Bember, 183 Conn. 394, 397, 439 A.2d 387 (1981). Insofar as circumstantial evidence can be and is routinely used to meet the higher standard of proof in a criminal prosecution, so can it be used in a case such as this where the applicable standard is that of clear and convincing proof." (Internal quotation marks omitted.) In re Juvenile Appeal (85-2), supra, 3 Conn.App. 192-93.
In this case, as previously set forth in detail, the court found by clear and convincing evidence that Cheyenne suffered severe physical injuries in the form of seventeen rib fractures that occurred at different times. The respondents could not explain her injuries and, after a period of time and reflection, attributed them to Cheyenne's grandmother. "It is not our function to retry the case or to pass upon the credibility of the witnesses; Johnson v. Flammia, 169 Conn. 491, 497, 363 A.2d 1048 (1975) . . ." In re Juvenile Appeal (85-2), supra, 3 Conn.App. 193. On the basis of our review of the record, we conclude that the evidence is sufficient to support the court's conclusion that the respondents, by acts of omission or commission, denied Cheyenne the care necessary for her physical well-being.5. The best interest of the child requirements:
As set forth above, the court first determines whether DCF has proved, by clear and convincing evidence, one of the grounds alleged in its TPR petitions. In this case, the grounds alleged against the mother are Ground B, failure to rehabilitate (as to all of the children); Ground (C), acts of omission or commission (as to Christal); and Ground F, serious bodily injury (as to Christine, Christopher and Shade). The court looks separately at the proof as to each alleged ground against the mother with respect to each child.
If the court finds that DCF has proved a ground concerning one or more of the children, before the court can terminate parental rights, it must find, by clear and convincing evidence, that to do so is in the best interest of such child:
After determining whether one of the statutory grounds for termination of parental rights under General Statutes § 17a-112(j) exists by clear and convincing evidence, a judge is required to evaluate whether severing the legal tie between parent and child is in the child's best interest. That task is among the most sensitive and difficult with which a judge is charged. Although a judge is guided by legal principles, the ultimate decision to terminate parental rights is intensely human. It is the judge in the courtroom who looks the witnesses in the eye, interprets their body language, listens to the inflections in their voices and otherwise assesses the subtleties that are not conveyed in the cold transcript.
In re Davonta V., supra, 98 Conn.App. at 42, 43.
As has been set forth above:
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.
In re Brea B., 75 Conn.App. 466, 469-70, 816 A.2d 707 (2003) (internal quotation marks omitted). See also In re Melody L., supra, 290 Conn. at 163; In re Selena O., supra, 104 Conn. at 643 n8; In re Shaun B., supra, 97 Conn.App. at 206-07. The difference in focus between adjudication and disposition has been explained as follows:
In the dispositional phase of a termination of parental rights hearing, "the emphasis appropriately shifts from the conduct of the parent to the best interest of the child." In re Romance M., 229 Conn. 345. 356-57, 641 A.2d 378 (1994). During this dispositional phase, "the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent's parental rights is not in the best interest of the child. In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in § 17a-112[k]." In re Tabitha P., 39 Conn.App. 353, 361-62, 664 A.2d 1168 (1995). We note that those "seven factors serve simply as guidelines for the court and are not statutory prerequisites that need to be proven before termination can be ordered . . . There is no requirement that each factor be proven by clear and convincing evidence." (Citation omitted.) In re Victoria B., 79 Conn.App. 245, 261, 829 A.2d 855 (2003).
In re Davonta V., supra, 98 Conn.App. at 46-47 (footnote omitted). See also In re Janazia, 112 Conn.App. 69, 98 (2009).
The seven required statutory findings are not specified in General Statutes § 17a-112(k) as the only parameters for determining the best interest of the child in a TPR context. Instead, the focus of many of the required statutory findings is to insure that the parents' rights and interests appropriately and properly have been considered.
The seven required findings set forth in General Statutes § 17a-112(k) are as follows:
Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended; (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (4) 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; (5) the age of the child; (6) the efforts the parent has 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; and (7) 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 Appellate Court recently has set forth the best interest standards of the child in a TPR context as including ". . . the child's interests in sustained growth, development, well-being, and continuity and stability of its environment . . ." In re Ryan R., 102 Conn.App. 608, 625-26, 926 A.2d 690 (2007); see also In re Janazia, supra, 112 Conn.App. at 97; In re Cameron C., 103 Conn.App. 746, 759, 930 A.2d 826 (2007), cert. denied, 285 Conn. 906 (2008), and In re Brianna C., supra, 98 Conn.App. at 804. Continuity and stability of environment are elements of permanency. The Appellate Court stated that in making such best interests determination, the trial court should "consider and make" the required written General Statutes § 17a-112(k) findings:
The respondent and R both claim that the court improperly concluded, in the dispositional phase of the hearing, that it was in the child's best interest to terminate the parental rights of the respondent with respect to R. We disagree.
"The best interests of the child include the child's interests in sustained growth, development, well-being, and continuity and stability of its environment." (Internal quotation marks omitted.) In re Shyina B., 58 Conn.App. 159, 167, 752 A.2d 1139 (2000). "In the dispositional phase of a termination of parental rights hearing, the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent's parental rights is not in the best interest of the child. In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in [§ 17a-112(k)]." (Internal quotation marks omitted.) In re Jermaine S., supra, 86 Conn.App. 835. The court thoroughly considered each of the seven criteria before finding that the respondent's failure to address her long-term history of substance abuse and domestic violence issues dictated that it would be in R.'s best interest to terminate her parental rights.
In re Ryan R., supra, 102 Conn.App. at 625-27. See also In re Joseph L., 105 Conn.App. 515, 529-30 (2008); In re Anthony H., supra, 104 Conn.App. at 764 (2007); and In re Cameron C., supra, 103 Conn.App. at 760.
The ". . . child's interests in sustained growth, development, well-being, and continuity and stability of its environment also are applied in connection with neglect dispositions:
In determining the disposition portion of the neglect proceeding, the court must decide which of the various custody alternatives are in the best interest of the child. "To determine whether a custodial placement is in the best interest of the child, the court uses its broad discretion to choose a place that will foster the child's interest in sustained growth, development, well-being, and in the continuity and stability of [the child's] environment." (Internal quotation marks omitted.)
In re Haley B., 81 Conn.App. 62, 67, 838 A.2d 1006 (2004).
Although the focus in the dispositional phase "appropriately shifts from the conduct of the parent to the best interest of the child . . ." In re Romance M., supra, the sixth required finding in § 17a-112(k) is to consider
. . . the efforts the parent has 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 . . .
As set forth above, the focus of many of the other required § 17a-112(k) findings also is to insure that the parents' rights and interests appropriately and properly have been considered.
Additionally, although "the best interest of the child" is referred to as a dispositional focus, the concept also appears in one of the adjudicatory grounds, Ground D, General Statutes § 17a-112(j)(3)(D), no parent-child relationship:
there is no ongoing 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 . . .
Also, General Statutes § 17a-112(q) provides that the "provisions of this section shall be liberally construed in the best interest of any child for whom a petition under this section has been filed." The seven adjudicatory grounds in General Statutes § 17a-112(j) are part of "the provisions of this section," e. g., § 17a-112.
6. DCF as statutory parent:
In performing its duties with respect to a TPR trial, this court's responsibility does not include where or with whom a child should live after a termination of parental rights, and thus this court should not enter orders concerning such matters as part of any TPR case disposition:
In the dispositional phase of a termination proceeding, the court properly considers only whether the parent's parental rights should be terminated, not where or with whom a child should reside following termination.
In re Sheena L., 63 Conn.App. 713, 726, 778 A.2d 997 (2001); see also In re Davonta V., supra, 98 Conn.App. at 53. There are several statutes providing or referring to DCF as statutory parent after TPR has occurred. For example, General Statutes § 17a-93 provides:
As used in sections 17a-90 to 17a-124, inclusive, and 17a-152: . . . (f) "Statutory parent" means the Commissioner of Children and Families or that child-placing agency appointed by the court for the purpose of giving a minor child or minor children in adoption . . .
General Statutes § 17a-112(m) provides:
. . . The Superior Court may appoint a statutory parent at any time after it has terminated parental rights if the petitioner so requests.
See also, e.g., General Statutes § 45a-707 (7), and see General Statutes § 17a-146:
. . . the Commissioner of Children and Families shall exercise and have all authority, rights, duties and functions granted to or imposed upon the Commissioner of Social Services in the general statutes in the area of adoption of children, including, but not limited to, authority . . . to act as a statutory parent, as defined in section 45a-707.
In its TPR petitions, DCF has requested that it be appointed as statutory parent.
General Statutes § 17a-112(o) provides:
In the case where termination of parental rights is granted, the guardian of the person or statutory parent shall report to the court within thirty days of the date judgment is entered on a case plan, as defined by the federal Adoption Assistance and Child Welfare Act of 1980, for the child which shall include measurable objectives and time schedules. At least every three months thereafter, such guardian or statutory parent shall make a report to the court on the progress made on implementation of the plan . . . If the court determines that the department has not made reasonable efforts to place a child in an adoptive placement or that reasonable efforts have not resulted in the placement of the child, the court may order the Department of Children and Families, within available appropriations, to contract with a child-placing agency to arrange for the adoption of the child. The department, as statutory parent, shall continue to provide care and services for the child while a child-placing agency is arranging for the adoption of the child.
7. Closure, stability, health, safety, continuity, stability and permanency for the child:
In determining the best interest of a child in a TPR context, see In re Ryan R., supra, 102 Conn.App. at 625-27, the court also considers and applies, inter alia, the concepts of closure and permanency:
It is abundantly clear that the court gave careful consideration to the concepts of closure and permanency and did not simply use those terms as empty incantations.
In re Davonta V., supra, 98 Conn.App. at 53. The Appellate Court also referred to stability and permanency concepts in Alejandro L.:
In its decision, the court found by clear and convincing evidence that the children's best interests would be served by granting the petitions to terminate the respondent's parental rights. In support of that finding, the court noted that much of the children's short lives had been spent in the custody of the commissioner, and that the children needed stability and permanency in their lives. On the basis of those facts, we conclude that the court's determination that the respondent's parental rights should be terminated was not clearly erroneous.
In re Alejandro L., supra, 91 Conn.App. at 262.
In the neglect context, the Supreme Court referred to the "dual goals of safety and permanency." In re Allison G., supra, 276 Conn. at 159.
Helping children achieve permanency has long been a goal of the federal government, see, e.g., 42 U.S.C. §§ 621, 622, 629g, 629h, 670, 671, CT Page 6311 673b, 673c, 675 and 5113, and of the General Assembly, see, e. g., General Statutes § 46b-129(k):
. . . (2) At a permanency hearing held in accordance with the provisions of subdivision (1) of this subsection, the court shall approve a permanency plan that is in the best interests of the child or youth and takes into consideration the child's or youth's need for permanency. The child's or youth's health and safety shall be of paramount concern in formulating such plan . . .
See also General Statutes §§ 17a-110a, 17a-111b and 17a-112(o). Thus, closure and stability for a child, the health and safety of a child, and continuity and stability of environment, see In re Anthony A., supra, 112 Conn.App. at 653-54, are concepts relating to permanency for the child.
8. The standard of clear and convincing evidence:
In Miller v. Commissioner of Corrections, 242 Conn. 745, 794-95 (1997), Justice Borden explained such clear and convincing standard of proof:
The clear and convincing standard of proof is substantially greater than the usual civil standard of a preponderance of the evidence, but less than the highest legal standard of proof beyond a reasonable doubt. It "is sustained if the evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist." (Emphasis added; internal quotation marks omitted.) State v. Bonello, 210 Conn. 51, 66, 554 A.2d 277, cert. denied, 490 U.S. 1082, 109 S.Ct. 2103, 104 L.Ed.2d 664 (1989).
Although we have characterized this standard of proof as a "middle tier standard"; J. Frederick Scholes Agency v. Mitchell, 191 Conn. 353, 358, 464 A.2d 795 (1983); and as "an intermediate standard"; State v. Davis, supra, 229 Conn. 293; between the ordinary civil standard of a preponderance of the evidence, or more probably than not, and the criminal standard of proof beyond a reasonable doubt, this characterization does not mean that the clear and convincing standard is necessarily to be understood as lying equidistant between the two. Its emphasis on the high probability and the substantial greatness of the probability of the truth of the facts asserted indicates that it is a very demanding standard and should be understood as such . . . We have stated that the clear and convincing evidence standard "should operate as a weighty caution upon the minds of all judges, and it forbids relief whenever the evidence is loose, equivocal or contradictory." (Internal quotation marks omitted.) Lopinto v. Haines, 185 Conn. 527, 539, 441 A.2d 151 (1981) . . .
(Footnotes omitted.)
See also In re Cheyenne A., supra, 59 Conn.App. at 158-59; Notopoulos v. Statewide Grievance Committee, 277 Conn. 218, 226, 890 A.2d 509 (2006); In re Anthony H., supra, 104 Conn.App. at 756 (2007); Eberhardt v. Imperial Construction Serv., 101 Conn.App. 762, 923 A.2d 785 (2007); and Chernick v. Johnston, 100 Conn.App. 276, 280, 917 A.2d 1042 (2007), cert. denied, 282 Conn. 919, 925 A.2d 1101 (2007).
9. The construction of General Statutes § 17a-112:
As set forth above, General Statutes § 17a-112(q) provides that the "provisions of this section shall be liberally construed in the best interest of any child for whom a petition under this section has been filed."
However, "[f]amily reunification is an important social objective. As our Supreme Court recently has reminded us: `[A]n important goal of the child protection statutes, in addition to protecting children from abuse and neglect, is to preserve family integrity by . . . teaching parents the skills they need to nurture and care for their children.' Teresa T. v. Ragaglia, 272 Conn. 734, 754, 865 A.2d 428 (2005)." In re Christina M., 90 Conn.App. 565, 570-71, 877 A.2d 941 (2005), affirmed, 280 Conn. 474 (2006).
10. Weight to be given to testimony, including from court-appointed psychologists and other experts:
In Davonta V., supra, 285 Conn. at 488-89, the Supreme Court set forth the standards to be applied by the court in considering witness testimony, including but not limited to the testimony of child welfare professionals, which testimony has an important role in neglect and TPR trials:
Parental termination litigation, including the present case, often involves testimony from various child welfare professionals. "The testimony of professionals is given great weight in parental termination proceedings . . . It is well established that [i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony . . . The credibility and the weight of expert testimony is judged by the same standard, and the trial court is privileged to adopt whatever testimony [it] reasonably believes to be credible . . . On appeal, we do not retry the facts or pass on the credibility of witnesses . . . It is the quintessential function of the fact finder to reject or accept certain evidence, and to believe or disbelieve any expert testimony . . . The trier may accept or reject, in whole or in part, the testimony of an expert offered by one party or the other." (Citations omitted; internal quotation marks omitted.) In re Carissa K., 55 Conn.App. 768, 781-82, 740 A.2d 896 (1999) . . .
In In re Melody L., supra, 290 Conn. at 161, the Supreme Court stated that a trial court can give credence to the testimony of an expert witness even on "the ultimate issue" to be decided by the trial court:
This court repeatedly has held that, "[e]xperts can . . . sometimes give an opinion on an ultimate issue where the trier, in order to make intelligent findings, needs expert assistance on the precise question on which it must pass." (Internal quotation marks omitted.) State v. Vilalastra, 207 Conn. 35, 41, 540 A.2d 42 (1988), cert. denied, 349 U.S. 926, 75 S.Ct. 775, 99 L.Ed. 1257 (1955). This understanding has been codified in § 7-3(a) of the Connecticut Code of Evidence, which provides in relevant part that "[t]estimony in the form of an opinion is inadmissible if it embraces an ultimate issue to be decided by the trier of fact, except that . . . an expert witness may give an opinion that embraces an ultimate issue where the trier of fact needs expert assistance in deciding the issue."
As the Appellate Court aptly has recognized, "[t]he trial court's exercise of discretion in admitting expert testimony is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law . . . Furthermore, [c]ourts are entitled to give great weight to professionals in parental termination cases." (Citation omitted; internal quotation marks omitted.) In re Tabitha P., 39 Conn.App. 353, 364-65 n. 8, 664 A.2d 1168 (1995); id. (concluding that trial court had not abused its discretion in admitting into evidence testimony of court-appointed evaluator's conclusions where there was no evidence that court failed to consider any other evidence in rendering its decision).
With respect to the trial court's responsibilities concerning the best interest of a child, the Supreme Court emphasized that after considering expert testimony, such court ". . . must make its own independent determination as to the best interest of the child . . ."
Nevertheless, although the trial court may rely on expert testimony, it ultimately must make its own independent determination as to the best interest of the child. In re Jeisean M., 270 Conn. 382, 398, 852 A.2d 643 (2004) ("[a]lthough we often consider the testimony of mental health experts . . . such expert testimony is not a precondition of the court's own factual judgment as to the child's best interest" [citations omitted; internal quotation marks omitted]). In sum, we must defer to both the trial court's weighing of the expert testimony presented and the trial court's independent factual determination as to what was in Davonta's best interest.
In re Davonta V., supra, 285 Conn. at 489
Similar principles have been set forth in earlier decisions:
In the Appellate Court decision in Davonta V., supra, 98 Conn.App. at 60, Judge Schaller, dissenting, wrote:
The psychological testimony from professionals is rightly accorded great weight in termination proceedings. In re Nicolina T., 9 Conn.App. 598, 605, 520 A.2d 639, cert. denied, 203 Conn. 804, 525 A.2d 519 (1987)." (Internal quotation marks omitted.) In re Kezia M., 33 Conn.App. 12, 22, 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993).
(Emphasis added.)
In an earlier case, the Appellate Court also stated essentially the same proposition: Psychological testimony from professionals is appropriately accorded great weight in termination proceedings.
In re Shyliesh H., 56 Conn.App. 167, 176, 743 A.2d 165 (1999) (emphasis added).
Earlier, the Supreme Court set forth the parameters for a trial court's use of expert testimony in a family case:
As in other areas where expert testimony is offered, a trial court is free to rely on whatever parts of an expert's opinion the court finds probative and helpful . . . In family cases in particular, it would be anomalous to require a trial court to assign particular weight to a report which is based on statements that the trial court may evaluate differently and on circumstances that may have changed.
Yontef v. Yantef, 185 Conn. 275, 281-82, 440 A.2d 899 (1981). See also Ford v. Ford, 68 Conn.App. 173, 190 (2002):
". . . [A] trial court is free to rely on whatever parts of an expert's opinion the court finds probative and helpful." Yontef v. Yontef, 185 Conn. 275, 281, 440 A.2d 899 (1981).
The trial court in whole or in part need not accept a person's testimony, whether or not such person has been qualified as an expert:
The law traditionally recognizes the trial court as a tribunal equipped to resolve disputed evidentiary issues, and as the "final judge of credibility." Clark v. Haggard, 141 Conn. 668, 674, 109 A.2d 358 (1954). Moreover, as we have often noted, the fact that a witness testifies as an expert does not compel the acceptance of his or her testimony as true. See, e.g., Aspiazu v. Orgera, 205 Conn. 623, 634, 535 A.2d 338 (1987).
State v. Joly, 219 Conn. 234, 237, 243, 593 A.2d 96 (1991). The Supreme Court stated that factual determinations are ". . . appropriately committed to the sound discretion of the trial court." Id. In Joly, the issue was whether a witness had been hypnotized. Id. The Supreme Court then stated:
. . . In resolving this issue, the court may be aided, but is not bound, by expert opinion. Id. Such testimony must be "considered, weighed and tested like any other evidence"; id.; and assessed "in relation to the other circumstances in evidence bearing on the question in issue"; Blake v. Blake, 207 Conn. 217, 225, 541 A.2d 1201 (1988); including, if offered, the testimony of the allegedly hypnotized witness. The trial court "is privileged to adopt whatever testimony [it] reasonably believes to be credible"; (emphasis in original) Eichman v. J J Building Co., 216 Conn. 443, 451-52, 582 A.2d 182 (1990); and expert testimony may be rejected in favor of other evidence found more persuasive. Transportation Plaza Associates v. Powers, 203 Conn. 364, 377, 525 A.2d 68 (1987).
In In re David W., 254 Conn. 676, 687-88, 759 A.2d 89 (2000), the Supreme Court emphasized deference to the trial court's discretion in determining the weight to be given to all or part of an expert's testimony:
Previously, we held that "[t]he credibility of expert witnesses and the weight to be accorded their testimony are within the province of the trier of facts, who is privileged to adopt whatever testimony he reasonably believes to be credible." (Internal quotation marks omitted.) Transportation Plaza Associates v. Powers, 203 Conn. 364, 378, 525 A.2d 68 (1987). Furthermore, it is well settled that the trial court possesses discretion in ruling, not only on the qualifications of expert witnesses, but on the admissibility and weight of their opinions and testimony. State v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387 (1986). "As the witness qualified as an expert, any objection to his testimony would go to its weight rather than to its admissibility." (Emphasis added; internal quotation marks omitted.) State v. Avila, 166 Conn. 569, 576, 353 A.2d 776 (1974). "It is rare for this court to find that a trial court has erred in a ruling permitting expert testimony." State v. John, 210 Conn. 652, 677, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S.Ct. 84, 107 L.Ed.2d 50 (1989).
11. The balancing of the legitimate interests of the parents, children and the state of Connecticut:
Each termination of parental rights case requires consideration of the interests of all parties, but as set forth above, in the dispositional phase the statutory standards require a focus on the best interests of the child, not the primary wishes or best interests of the parents. Nevertheless:
The desire and right of a parent to maintain a familial relationship with a child cannot be separated from the desire and best interest of a child either to maintain or to abandon that relationship, or the interest of the state in safeguarding the welfare of children. The legitimate interests of parent, child and state require a balancing of the factors involved in those interests . . . In every case involving parental rights, a struggle exists between parents and the state to determine what is in the child's best interest, the child being the focus of the struggle . . .
(Citations omitted.) In re Shaquanna M., 61 Conn.App. 592, 598-99, 767 A.2d 155 (2001).
Since Meyer v. Nebraska, 262 U.S. 390, 399, 401-03, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), the United States Supreme Court has recognized the fundamental liberty interest of parents in the custody, care and control of their children. Most recently in Fish v. Fish, supra, Justice Katz's dissenting opinion, the line of Supreme Court cases, beginning with Meyer, in which this fundamental liberty interest is recognized, has been set forth:
The Supreme Court's decisions recognizing this fundamental right date back to at least 1923. See Meyer v. Nebraska, 262 U.S. 390, 399, 401-03, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (concluding that "proficiency in foreign language . . . is not injurious to the health, morals or understanding of the ordinary child" and recognizing right of parents to "establish a home and bring up children" and to "control the education of their own"); Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (holding that state could not interfere with parents' decision to send children to private schools when decision was "not inherently harmful" and recognizing right "to direct the upbringing and education of children under their control"); Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (exempting Amish from state compulsory education law requiring children to attend public school until age eighteen, recognizing that "primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition"); see also Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944) ("[i]t is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder"); Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) ("[i]t is plain that the interest of a parent in the companionship, care, custody, and management of his or her children `come[s] to this [c]ourt with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements'"); Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978) ("[w]e have recognized on numerous occasions that the relationship between parent and child is constitutionally protected"); Parham v. J.R., 442 U.S. 584, 602, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979) ("Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course"); Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (discussing "[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child"); Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) ("[i]n a long line of cases, we have held that, in addition to the specific freedoms protected by the [b]ill of [r]ights, the `liberty' specially protected by the [d]ue [p]rocess [c]lause includes the righ[t] . . . to direct the education and upbringing of one's children" [citations omitted]).
Fish v. Fish, supra, 285 Conn. at 93 n3 (Katz, J., dissenting).
In Parham, the United States Supreme Court recognized that parents, who have traditional interests in and responsibility for the upbringing of their child, retain a substantial, if not the dominant, role in decisions for their child(ren), absent a finding of neglect or abuse as has occurred in this case:
Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course; our constitutional system long ago rejected any notion that a child is "the mere creature of the State" and, on the contrary, asserted that parents generally "have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations." Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925). See also Wisconsin v. Yoder, 406 U.S. 205, 213 (1972); Prince v. Massachusetts, 321 U.S. 158, 166 (1944); Meyer v. Nebraska, 262 U.S. 390, 400 (1923). Surely, this includes a "high duty" to recognize symptoms of illness and to seek and follow medical advice. The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children. 1 W. Blackstone, Commentaries; 2 J. Kent, Commentaries on American Law.
As with so many other legal presumptions, experience and reality may rebut what the law accepts as a starting point; the incidence of child neglect and abuse cases attests to this. That some parents "may at times be acting against the interests of their children" as was stated in Bartley v. Kremens, 402 F.Sup. 1039, 1047-48 (E.D.Pa. 1975), vacated and remanded, 431 U.S. 119 (1977), creates a basis for caution, but is hardly a reason to discard wholesale those pages of human experience that teach that parents generally do act in the child's best interests. See Rolfe MacClintock 348-49. The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.
Nonetheless, we have recognized that a state is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized. See Wisconsin v. Yoder, supra, at 230; Prince v. Massachusetts, supra, at 166 . . .
Parham v. J.R., supra, 442 U.S. at 602-03.
In his concurring opinion, Justice Stewart rejected the idea that all parents act in the best interests of their children and that all parents are fit parents:
To be sure, the presumption that a parent is acting in the best interests of his child must be a rebuttable one, since certainly not all parents are actuated by the unselfish motive the law presumes. Some parents are simply unfit parents. But Georgia clearly provides that an unfit parent can be stripped of his parental authority under laws dealing with neglect and abuse of children.(fn 7.]
Id., 624 (Stewart, J., concurring).
In footnote 7, Justice Stewart referred to Justice Brennan's concurring and dissenting opinion which contained the following:
In our society, parental rights are limited by the legitimate rights and interests of their children. "Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves." Prince v. Massachusetts, 321 U.S. 158, 170 (1944). This principle is reflected in the variety of statutes and cases that authorize state intervention on behalf of neglected or abused children and that, inter alia, curtail parental authority to alienate their children's property, to withhold necessary medical treatment, and to deny children exposure to ideas and experiences they may later need as independent and autonomous adults.
This principle is also reflected in constitutional jurisprudence. Notions of parental authority and family autonomy cannot stand as absolute and invariable barriers to the assertion of constitutional rights by children.
Id., 630-31 (Brennan, J., concurring in part and dissenting in part).
Connecticut also balances the constitutional rights of parents against the duty and responsibility of the state to insure the health, safety and welfare of children. See, e. g., In re Stephen M., 109 Conn.App. 644, 646 (2008):
To facilitate the state's parens patriae interest, the legislature has enacted a comprehensive scheme to protect children who are at risk due to their parents' inability or failure to provide for their well-being. See General Statutes § 17a-101; In re T.K., 105 Conn.App. 502, 503-04, 939 A.2d 9, cert. denied, 286 Conn. 914, 945 A.2d 976 (2008). The statutory scheme takes into consideration, however, the fundamental precept that "[p]arents have a constitutionally protected right to raise and care for their own children." In re Juvenile Appeal (83-DE), 190 Conn. 310, 318-19, 460 A.2d 1277 (1983) . . .
and In re Juvenile Appeal (83-DE), 190 Conn. 310, 318-19, 460 A.2d 1277 (1983):
. . . Parents have a constitutionally protected right to raise and care for their own children. Stanley v. Illinois, 405 U.S. 645, 651, CT Page 6322 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). This right is not free from intervention by the state, however, when the continuing parens patriae interest of the state in the well being of children is deemed by law to supercede parental interests. See General Statutes 17-43a, 46b-129(e); In re Juvenile Appeal (83-BC), 189 Conn. 66, 77, 454 A.2d 1262 (1983); Anonymous v. Norton, 168 Conn. 421, 430, 362 A.2d 532, cert. denied, 423 U.S. 935, 96 S.Ct. 294, 46 L.Ed.2d 268 (1975).
In an earlier decision, In re Juvenile Appeal (83-CD), 189 Conn. 276, 282-84, 293, 455 A.2d 1313 (1983), the Supreme Court rejected a respondent parent's argument that General Statutes § 46b-129(b) was unconstitutional because it was an impermissible infringement on such parent's right to family integrity. Recently in Fish v. Fish, 285 Conn. 24, 73-74, 939 A.2d 1040 (2008), the Supreme Court balanced parents' constitutional liberty interests against a child's welfare and safety to apply the regular civil fair preponderance standard of proof in third party custody proceedings:
. . . Moreover, this court determined more than two decades ago that the fair preponderance standard is constitutionally permissible in temporary custody and neglect proceedings because the child's welfare and safety represents a strong countervailing interest in relative equipoise with the liberty interest of the parent. See In re Juvenile Appeal (83-CD), supra, 189 Conn. 287 (when child's interest no longer coincides with that of parent, magnitude of parent's right to family integrity is diminished); see also In re Juvenile Appeal (84-AB), 192 Conn. 254, 263-64, 471 A.2d 1380 (1984).
Accordingly, although we agree with the concurrence that the interest of the parent is extremely significant and may require additional protection by imposing a heightened standard of proof in other circumstances, there is well established precedent for applying the fair preponderance standard in third-party custody proceedings.
This is a case where each of the children was removed from the custody of the mother in June 2007, and where each of the children has been committed to the care, custody and guardianship of DCF since October 2, 2007, so the family has not been an intact family for approximately twenty-two months. The mother thus does not have the benefit of any presumption that she is fit to care for such children, and, unfortunately for the mother, the evidence is overwhelmingly to the contrary. Compare Roth v. Weston, 259 Conn. 202, 216, 789 A.2d 431 (2002). See also Dutkiewicz v. Dutkiewicz, 289 Conn. 362, 378 n. 11 (2008):
As we noted in Roth, "[t]here are . . . limitations on these parental rights. Some of these limitations arise out of an appreciation of the state's long recognized interests as parens patriae. See Reno v. Flores, 507 U.S. 292, 303-04, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993); Santosky v. Kramer, 455 U.S. 745, 766, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Parham v. J.R., 442 U.S. 584, 605, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944); see also General Statutes § 10-204a (requiring parents to immunize children prior to school enrollment); General Statutes §§ 14-100a, 14-272a (requiring child restraint in vehicles); General Statutes § 17a-81 (authorizing emergency medical treatment where parent withholds consent); General Statutes §§ 31-23, 31-24 (restricting child labor from certain occupations or workplaces); General Statutes § 53-21a (prohibiting parents from leaving child unsupervised in public accommodation or vehicle). Furthermore, it is unquestionable that in the face of allegations that parents are unfit, the state may intrude upon a family's integrity. Parham v. J.R., supra, 603; see General Statutes § 17a-101g (removal of child where imminent risk of harm); General Statutes §§ 17a-112(j), 45a-717 (termination of parental rights)." Roth v. Weston, supra, 259 Conn. 224.
Former Chief Justice Peters has noted:
Cases involving the termination of parental rights are always difficult . . . Accordingly, the court sought the proper balance between the parents' constitutionally protected interest in the care, custody and control of their children, and the interest of the state, acting as parens patriae, to protect the children's health and safety.
In re Christina M., supra, 90 Conn.App. at 566-67.
WITH RESPECT TO THE MOTHER OF CHRISTINE, CHRISTOPHER, CHRISTAL AND SHADE, DCF HAS PROVED, BY CLEAR AND CONVINCING EVIDENCE, THE GROUND B ALLEGATIONS OF ITS TERMINATION OF PARENTAL RIGHTS PETITIONS, AND AS TO CHRISTAL, SUCH GROUND C ALLEGATIONS.The court finds that DCF has alleged and proved, by clear and convincing evidence, that
(1) this court has jurisdiction over the matter and the parties;
(2) there is no other action pending in any other court affecting custody of Christine, Christopher, Christal and Shade known to this court. The mother has not claimed to be affiliated in her lineage with any Native American tribe;
(3) on October 2, 2007, Christine, Christopher, Christal and Shade were adjudicated neglected, and each was committed to the care, custody and guardianship of DCF;
(4) prior to and after filing its August 21, 2008, termination petitions, DCF made reasonable efforts to reunify the mother with Christine, Christopher, Christal and Shade through offers of and provision of services, but the mother was not able to reach a point where after the October 2, 2007, adjudications of neglect reunification with her was in best interest of Christine, Christopher, Christal and/or Shade;
(6) the mother of Christine, Christopher, Christal and Shade, who were adjudicated neglected, has failed to, is unable and/or is unwilling to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the ages and needs of Christine, Christopher, Christal and Shade as of the date of the filing of the TPR petitions or as of March 31, 2009, the last date of the TPR hearing, she could assume a responsible position in the life of Christine, Christopher, Christal and Shade as their day-to-day full-time parent.
As to Christal, the court also finds that DCF has proved Ground C. As set forth in In re Rachel J., supra, 97 Conn.App. at 755, in addition to serious physical injury, Christal suffered serious emotional injury while living with the respondent. She lost her two front teeth when the mother pushed her down the stairs. (Exhibit 3, 9.) The mother choked her, hit her with a baseball bat and a belt. Id. Christal has at least one scar on her face from the mother's physical abuse of her. Christal has a history of hoarding food and eating from garbage cans because she was repeatedly denied food by the mother. Id., 10, 13. The psychological examiner testifed that Christal has been diagnosed with post-traumatic stress disorder. The reunification worker described a visit between Christal and the mother as follows:
The mother acknowledged to DCF that she hit Christal and her other children with a baseball bat (also described as a plastic "Wiffle Ball" type bat). Id., 13.
It is important to note the level of work it took to assure Christal of her safety prior to this visit. Despite the preparation, she remained fearful and anxious. When she arrived at the visit, she was tearful and needed continued reassurance that she would be safe. While waiting for her mother to arrive, she presented as hyper-vigilant and looked to this worker for reassurance. During the visit, she remained cautious and attempted to initiate contact with her mother. After the visit, this five-year-old child asked for reassurance that she would not have to visit with her mother again.
(Exhibit 5, 1; see also exhibit 6, 1.) The psychological examiner concluded that Christal's "reactions appear to be the results of extreme physical and emotional abuse visited upon her by the mother." See id., 10. He testified that after examining "thousands" of children he "had rarely seen a fear response [to the mother] of Christal's intensity."
By her acts of parental commission and omission the mother denied Christal the care, guidance or control necessary for Christal's physical, educational, moral or emotional well-being.
When asked about Ground F in oral closing argument, counsel for DCF chose not to proceed with such ground against the mother in relation to Christine, Christopher and Shade, so the court does not determine at this time whether DCF proved such ground by clear and convincing evidence. See In re Rachel J., supra, 97 Conn.App. at 757-60. DCF may file a written withdrawal of such allegations if it chooses to do so.
THE BEST INTEREST OF CHRISTINE, CHRISTOPHER, CHRISTAL AND SHADE:
The court has considered the best interest of Christine, Christopher, Christal and Shade. The court has considered whether it is in the best interest of either Christine, Chrisopher, Christal or Shade to be returned to the mother, including whether the mother reasonably could be expected and relied upon to provide the safe, secure, nurturing, stable and permanent environment idealized in the statutes and case law, and the court has considered Christine's, Christopher's, Christal's and Shade's ". . . interests in sustained growth, development, well-being, and continuity and stability of [their] environment . . ." In re Ryan R., 102 Conn.App. 608, 625-26 (2007). Unfortunately for Christine, Chrisopher, Christal and Shade, the mother since June 2007, has not provided and currently is unable to provide each of them with such safe, secure, nurturing, stable and permanent environment. On the other hand, in the care of the relative foster parents, each is receiving love, nurturing and appropriate care in a stable environment.
In accordance with applicable federal and state law, the court finds, by clear and convincing evidence, that it is in the best interest of Christine, Christopher, Christal and Shade and that it is necessary for each of their well-being, growth, development, safety, security, stability, continuity, consistency and permanency, and for closure, that the rights of the biological mother be terminated.
CONCLUSION AND ORDERS:
Having considered the evidence and the statutory, Practice Book and case law requirements, the court finds, by clear and convincing evidence:
(a) DCF proved by clear and convincing evidence that the mother of Christine, Christopher, Christal and Shade, each of whom was adjudicated neglected on October 2, 2007, had failed as of August 21, 2008, the date of the TPR petitions (and as of March 31, 2009, the end of the TPR hearing), to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the ages and needs of Christine, Christopher, Christal and Shade, she could assume a responsible position in Christine's, Christopher's, Christal's and Shade's lives;
(b) DCF also proved by clear and convincing evidence that because of the mother's acts of parental commission and omission she denied Christal the care, guidance or control necessary for Christal's physical, educational, moral or emotional well-being; and
(c) it is in the best interest of Christine, Christopher, Christal and Shade to terminate the parental rights of the biological mother.
Accordingly, it is hereby ORDERED that the parental rights of the mother to Christine, Christopher, Christal and Shade are hereby terminated.
The commissioner of the department of children and families is appointed as the statutory parent of Christine, Christopher, Christal and Shade. The initial status report concerning Christine, Christopher, Christal and Shade shall be submitted, as required, within thirty days hereof. Quarterly reports and annual permanency plans shall be submitted as required in accordance with statutory requirements, including those set forth in General Statutes § 17a-112(o).
Judgment shall enter accordingly.