Opinion
No. CP 99 012853
May 8, 2007
MEMORANDUM OF DECISION
"To a degree, this youth has already been penalized by the `systems' pratfalls." Clinical Director, Harmony Hills School, on DCF's delay in planning. Chepachet, Rhode Island.
I. FRANCISCO
Francisco was born February 3, 1995. He may have been born with positive drug toxicology as his mother was abusing drugs during pregnancy. During his first four years of life his mother was actively abusing alcohol and drugs, Francisco was neglected, abused and lacked appropriate supervision. From history and conduct, he was likely sexually abused. He was removed from his mother at age four years and 31 days. He has never returned to her care. He is now 12 years old.
Since removal, Francisco has been in three therapeutic foster homes, and has spent 38 out of 43 months in four psychiatric level residential hospitals in Massachusetts, Connecticut and Rhode Island. He has had eleven placements. He has attended 12 schools. His working diagnosis is Attention Deficit Hyperactivity Disorder, Oppositional Defiant Disorder, Bipolar Disorder, Mixed Expressive Receptive Language Disorder, and Reading Disorder. He is on ritalin, lithobid and abilify. He is 12 years old, a fifth grader functioning at the 2nd and 3rd grade levels. He has low stress tolerance and, after years of treatment and medication, has improved to "moderate behavior problem."
Most of this information is from Harmony Hills School, Exhibit D.
In August of 2006, Francisco was placed in his fourth foster home where he has progressed "amazingly well" according to his present therapist. This foster family is not pre-adoptive, they have indicated that "[W]e will continue to take care of Francisco as long as he wants to stay with us or until such time as his behavior would warrant a change in residence." (Petitioner's Exhibit E.)
II. A HANDICAPPED FATHER CT Page 11629
This is the second action for termination of parental rights. The first neglect petition was filed on February 10, 1999 against the mother of the child and one Tony S., whom mother claimed was the father of Francisco. Four months later, May 26, 1999, the child was adjudicated neglected and he was committed to DCF where he has remained to this date.A year after DCF's involvement, in January 2000, the respondent-father, who is deaf, called the DCF office to report that he believed he was the father of the child, not Tony, and he wished to have a paternity test. The paternity test was completed nine months later on September 14, 2000. On October 17, 2000, Christopher J. was named as the father of five-year-old Francisco.
The father was eager to have visitation, to get to know his five-year-old son and to be considered as a placement resource for the child. Even for a person with no handicaps, there are always substantial hurdles to negotiate to be considered eligible for placement.
Good child protection practices, good case-flow management, and Federal law all require participants in the child protection system to frequently review the case to avoid foster care drift. Courts assign in-court reviews, case status conferences, hearings and pre-trial proceedings at least monthly. Parents are expected to attend. A juvenile court has it's own lexicon. It is often difficult for judges new to the court to pick up on the terms and abbreviations and find the rhythm of the juvenile court language.
Similarly, the Department of Children and Families has it's own internal guidelines and federal mandates. It has administrative case reviews, treatment plan reviews and other meetings which the parents or persons seeking placement are expected to attend. They have their own language; "DCF-speak," as well.
Persons who seek placement are expected to attend all scheduled visits. These visits are especially difficult for persons who are not already closely bonded to an infant or young child. Fastidious caseworkers frequently are not sympathetic to those persons who have a scheduled visitation when they fail to attend, even for sickness, transportation problems, overtime work or the like; even if they have to travel for two hours each way to attend the visitation. Even if they are handicapped.
In addition to the court schedule, the DCF meetings, the required visitation, DCF workers often expect the would-be custodian to attend a host of clinical and counseling modalities. They may be required to attend individual counseling and family therapy sessions. Sometimes the social workers, in a burst of service zeal, require the hapless parent to attend three or four kinds of counseling at once: anger management, individual counseling, family counseling, substance abuse evaluations, parent effectiveness training. Sometimes they are expected to be involved in the child's education and counseling. The litany of services, providers, events, hearings, meetings and locations is endless and taunting. The commitment of time can be truly overwhelming. The terminology of each specialty is also a burden for those unfamiliar with the behavioral sciences.
Imagine, if you will, attending these hearings, meetings counseling sessions and events if you could not hear the speakers.
We are taught in our diversity training to be mindful of the culture of our clients and our audience. Hispanic, Vietnamese, Haitians, Thai, Chinese and the like are frequently differing cultures encountered in Connecticut. People who are deaf also have a culture that is not commonly encountered. The deaf have ways of expressing themselves that are often wildly misunderstood by the hearing community. Facial expressions, sounds, noises and gestures that are not words, forcefully expressed, are frightening to those unfamiliar with the hearing-impaired community. A seven-or eight-year-old child could be especially frightened and vexed by the commotion of excited communication by and between deaf persons, as happened in this case. No DCF caseworker involved in this case is known to have had any training or experience with the hearing-impaired community and culture.
Imagine, if you will, being hearing-impaired and not being able to hear the discussions and further, that no one in the group understands your culture, methods of communication and specialized challenges.
Imagine if you will, having to attend all these visits, all this counseling, all these court hearings, all these DCF meetings, without any participants fully understanding your culture, without an interpreter and having to drive two hours each way and losing time from work from your low-paying job in a car that is old and unreliable.
The respondent in this case did not ask for transportation. He did ask for gas money. In order to secure mileage reimbursement from DCF, the social worker required the respondent to provide a computer generated "Google map" showing the distance from his home in Massachusetts to the site of the visitation or courthouse. Perhaps that would not be a hassle for some people. Here the case worker testified she could obtain the Google search within sixty seconds on her own computer by herself, nonetheless she insisted he provide it. That does not seem a reasonable accommodation to a handicapped person. Nor is it reasonable to require attendance at all these multitude of functions, because that's the way it is always done.
The caseworker testified she requested the Google search to verify mileage in Sept., October, and November of 2004 and in August of 2005. She conceded that she herself had performed the requested Google search the day before her testimony in less than a minute.
Mileage reimbursement was a continuing issue in this case for the respondent. The court file indicates a note at CPS Middletown "Note AAG to check status of reimbursement payments to father for past trips to Connecticut." A second note: "DCF to assist FA with transportation to regular visits."
The respondent in this case is not merely hearing-impaired, he is profoundly deaf. If he is able to speak, it was not evident to the court during his in-court testimony with the assistance of an American Sign Language (ASL) Interpreter. It is the best estimate of the court based upon all testimony, that at approximately one-half of all appointments meetings, visits and especially court hearings attended by the respondent, there was no ASL interpreter present so that the attendance by the respondent was marginal or at least greatly compromised.
In fairness to all, the respondent's inconsistent attendance contributed greatly to the problem. Often there was an interpreter present and the respondent failed to appear.
The failure to have interpreters present was more a function of the lack of interpreters than any failing by the courts or DCF. Indeed, to illustrate the problem, when the father wanted to visit his son during the week-days, because he worked at night, Harmony Hills School would not allow this since it would "interfere with the academic program." When the respondent was willing to visit on week-ends, Harmony Hills said this would not work since they couldn't get interpreters on the week-ends.
In another situation, the respondent was asked to sign papers or releases by DCF or Harmony Hills personnel, without an interpreter present to explain the consequences of his conduct. It is this court's belief that the Department of Children and Families never fully appreciated the enormity of the demands imposed upon this respondent or appreciated the culture of the hearing impaired community and the limitations of this particular parent. With these considerations as a background a further discussion of the facts is appropriate.
III. FACTUAL BACKGROUND
In December 2000, respondent had his first of monthly visits with Dare Family Services in Worcester, MA. The visits continued throughout 2001. There were incidents which caused concerns to DCF. Tragically for Francisco and his father, in July 2002, Francisco's most long-term and successful foster placement disrupted after three years of placement by the separation of the foster parents. At age seven and one-half, Francisco entered a downward spiral that for the next four years required multiple psychiatric interventions and greatly disrupted any efforts of the father to establish consistent and regular visitation. Efforts to teach Francisco sign language during this time was also greatly frustrated. On Jan 17, 2003 the first petition was filed to terminate the parental rights of both biological parents.
The biological mother had dropped out of Francisco's life. When the case appeared for trial in the spring of 2004 at the Child Protection docket in Middletown, the file notes indicate that Dr. Teresa Gallenstein, Francisco's therapist, recommended against the termination of parental rights as to the father and indicated it would not be in the child's best interest. The mother subsequently consented and her parental rights were terminated on April 26, 2004. The petition was withdrawn as to the father.
Much of the history of this case has been gathered by the court, ex parte, by judicially noticing the memorandum of court hearings. The social study submitted into evidence in this case was very shallow and lacking in detail and history of even major events.
As best the court can construct the events of this case, absent sufficient testimony and a terribly incomplete social study, Francisco had gone from a Pembroke Hospital in Massachusetts to a short term therapeutic foster home, to Natchaug Hospital, to the Village for Families and Children, to Riverview Hospital (11/03 thru 8/04) and thence to Harmony Hills School in Rhode Island that he entered on September 3, 2004. He remained there for two years.
As earlier noted, the respondent had trouble with Harmony Hills from the beginning. For the first six months Francisco was in a rage; aggressive, assaultive and in need of physical restraints. It is unclear what visitation was offered him although it was noted by Harmony Hills that father "had showed, when [Francisco] was at Riverview, that he could travel frequently to visit." Because of the child's serious emotional problems at admission, it is likely that Harmony Hills limited visitation during the first six months.
What is clear is that the father did not get along with Francisco's new therapist. It is likely that he became frustrated with a renewed demand that he participate in therapy again. He had already completed successfully a course of anger management counseling. He had spent a year in therapy with Carrie Mathers-Kurland, a therapist recommended by DCF. And now Harmony Hills and DCF were telling him he needed to get in therapy again to deal with his anger at DCF!
It is disturbing to the court that DCF, in its earlier social study and in the May 12, 2006, study (Petitioner's exhibit B), both misrepresent the respondent's success in therapy. The first social study quoted a letter from the therapist as saying "[the respondent] is ignorant regarding his sons's needs." In the present social study the social worker reports in part:
The study prepared for the first TPR case, which was vastly more complete, was read by the court but not considered as evidence. The present social study provided very little background on the case.
Participate in counseling and make progress toward the identified treatment goals: Parenting and Individual. The social worker reports "[The respondent] has not been compliant with this step." She thereafter reports the problems he had at Harmony Hills but never mentions his successful therapy with Carrie Mathers-Kurland nor his successful completion of his anger management class.
His DCF approved therapist used words such as "highly motivated," "intelligent" "improved self-esteem bodes well for his potential," "his attitudes have greatly improved through therapeutic intervention."
You may conclude that the needs of Francisco are not necessarily met by [respondent] even with his remarkable progress, motivation and positive regard for his son. I would simply like his efforts and strengths to be on record as my main impressions. It is erroneous to use my earlier statements as reflecting my views of his progress and of his potential.
(Respondent's Exhibit 1.)
The failure of the social workers to give the respondent credit for his successes, even if they are limited or not complete, amounts to intellectual dishonesty. It does not represent a balanced presentation of the facts. While the court understands that the department is advocating for a termination of the parent's rights, the department has an affirmative obligation in making its presentation to the court to fairly and honestly present the positive behavior and conduct of the parents as well as the negative and unsuccessful behaviors. The department cannot protect or advocate for the child through deception.
Another disturbing aspect of this case relates to the period of December 2005, until August of 2006. During this period of time, the respondent and his girlfriend of five years separated, the respondent left his apartment in Taunton, Massachusetts and was not visiting his son.
The social worker made a home visit on March 1, 2006, and she learned that he had moved and did not leave a forwarding address. Soon thereafter, in May 2006, she began the second termination proceeding, reporting in the social study that the respondent was "whereabouts unknown." She filed an affidavit with the court for an order of notice saying the following efforts were made to identify or locate the parent:
No current listing was found for father via the CT DSS Database.
No current listing was found for father via the CT DMV Datatbase.
No current listing was found for locate plus.
Social Worker visited last known address, whereabouts unknown.
Social Worker was unable to get a forwarding address from Taunton postmaster.
That recitation of inquiry is disingenuous and misleading to the court. It appears that she made reasonable efforts and a diligent search. She did not.
The social worker knew that the respondent lived in Massachusetts so that the CT DSS and DMV searches, if made, were pointless. She knew he lived with his mother for much of his 30-year life in Brockton, Massachusetts. His mother was known to the agency. His mother testified she called DCF six times within the past year without receiving a return phone call. The social worker did not call his mother to attempt to locate the respondent. The department also knew his last known employer. The social worker did not call the employer to attempt to locate the respondent. Two very obvious resources for information were simply not explored. The court depends upon the good faith of social workers in making critical judgments.
Ultimately, the lack of a good faith, diligent search and common sense effort to locate the father implicated procedural due process. Based upon the social worker's affidavit, constructive service was made in a Boston newspaper. The respondent did not get notice of the commencement of the proceedings. He did not appear for the first few months of court dates. When he did contact DCF in August 2006 and ultimately appeared in court in September, there was no ASL interpreter present. It was many months after the commencement of the case before he appeared and an interpreter was present. There were other issues raised by his counsel when he appeared and an interpreter was present; no one realized that the respondent had never been advised of his rights.
IV. CONCLUSION
The petitioner initially alleges that the respondent abandoned Francisco and that may be true. The respondent was living with the child's mother when the child was conceived. He believed he was the father. He testified he went to visit the child shortly after birth and thought the child looked like him, yet he accepted the mother's declaration that her new boyfriend was the father. He could have filed a paternity action to ascertain his paternity. He did not. He walked away.
In Michael H. v. Mark K., 898 P.2d. 891, 896 (Cal. 1995), the California Supreme Court held that unless the natural father can prove "that he has promptly come forward and demonstrated his full commitment to his parental responsibilities" ". . . the federal Constitution protects only the parental relationship that the unwed father has actively developed." citing Lehr v. Robertson, 463 U.S. 248, 261 (1983). The respondent did not robustly assert his rights to paternity. He did not vigorously and actively assert his paternal claim.
The petitioner also alleges that the father failed to rehabilitate and that also may be true. It is very possible, indeed probable, that the father simply is unable to grasp the significance of Francisco's many educational and emotional delays. It is likely that he cannot ever be a placement resource as a person who can meet the needs of this special needs child. It is unclear that he can demonstrate the stability and security necessary for Francisco. But the court does not need to address these adjudicatory issues.
There are so many systemic issues presented that the petition, as presented, must be denied.
1) The respondent was never advised of his rights, even though he did actually have the full protection of all his substantive due process rights.
2) The social studies indicate the respondent was of Native American heritage but there is no record of Bureau of Indian Affairs notice.
3) No specific steps for the father were every implemented for the same reasons he was not advised of his rights. It does not appear that a clear plan of obligations for the father was ever developed and implemented. If there was a plan, and it changed over time, it was never adequately developed and conveyed to the respondent. Given the facts specific to this case, notably his deafness, written communication was more important than usual. No written plan was ever presented to the respondent. If there was such a plan, it was not mentioned in the social study nor was it presented as evidence in court. There was no testimony that the case worker ever sat down with her supervisor and mutually discussed what, if any, special accommodations were necessary to deal with this respondent.
This failure to set specific steps is also associated with the lack of diligent search to initially locate the father and get him in court at the commencement of proceedings.
4) The petitioner has failed to prove by clear and convincing evidence that termination of parental rights is in the best interest of the child.
For the foregoing reasons, the petition for termination of parental rights is denied. The permanency plans are approved in part insofar as they call for long-term foster care. The court finds that reasonable efforts have been made by DCF to secure long-term foster care.
Further active efforts at reunification would be detrimental to the child's present situation and would only be disruptive and destabilizing. No further efforts are required to reunify the father and son at this time.
Counsel for the child and the guardian ad litem shall maintain periodic contact with the child to determine if some contact or association with the father is requested by the child and is appropriate. Severing his parental rights, whether his father has perfected his parental rights or not, would serve no useful purpose at this time.
Judgment may enter accordingly.