Opinion
No. U06-CP05-005399-A
June 24, 2009
MEMORANDUM OF DECISION
This is a termination of parental rights ("TPR") case.
On June 12, 2009, the assistant attorney general, the current department of children and families ("DCF") worker assigned to the family, the mother, her attorney, and the father's attorney appeared before the court. The attorney for the child Johnathan M. ("Johnathan") was ill and did not appear before the court, but he provided two position letters that by agreement were admitted as full exhibits.
The father of Johnathan did not appear for the hearing. On December 24, 2008, the father had not appeared in the regional court for his advisement and plea to the petition for termination of his parental rights ("TPR petition"). He was defaulted, but counsel was appointed for him.
On June 12, 2009, the mother decided to offer her written consent to the termination of her parental rights. She was canvassed, and the court (Bear, J.), found such consent to be knowingly, voluntarily and intelligently made by the mother with the adequate advice and the effective assistance of her counsel, and the court accepted such consent. With respect to the mother, upon the motion of the assistant attorney general, the court permitted the commissioner of children and families ("DCF") to amend its petition to add the ground of consent, and the court also permitted DCF to withdraw the non-consensual TPR grounds alleged against the mother set forth in its petition.
The hearing then proceeded with respect to the issue of whether the father's parental rights should or should not be terminated and to the question of whether termination of each parent's parental rights was in the best interest of Johnathan.
FACTS:
Each of the following facts is found by clear and convincing evidence:
1. Johnathan was born in July 2002.
This fact and much of the information set forth about the father and the mother is contained in the exhibits. The chronology is set forth in a motion for judicial notice and in the exhibits.
2. On November 21, 2005, DCF invoked a ninety-six hour hold on Johnathan. Such hold expired on November 25, 2005.
3. On December 1, 2005, DCF filed a neglect petition.
4. On July 5, 2006, the court adjudicated Johnathan neglected and protective supervision was ordered for six months. On July 5, 2006, the court issued "final" specific steps to the father that he signed.
5. On July 21, 2006, the court issued an ex parte order of temporary custody in favor of DCF.
6. On July 27, 2006, DCF filed a motion to modify disposition from protective supervision to commitment. On September 29, 2006, such motion was granted and Johnathan was committed to the care, custody and guardianship of DCF.
7. On March 19, 2008, the court modified disposition from commitment to DCF to protective supervision for three months, and Johnathan was returned to the care of the mother.
8. On April 4, 2008, the court issued an ex parte order of temporary custody in favor of DCF.
9. On April 9, 2008, DCF filed a motion to modify disposition from protective supervision to commitment. On November 20, 2008, such motion was granted and Johnathan was committed to the care, custody and guardianship of DCF.
10. On December 3, 2008, DCF filed its petition to terminate the rights of each parent. In its TPR petition DCF alleged, inter alia, that
A. in violation of General Statutes § 17a-112(j)(3)(A) the father of Johnathan abandoned him in the sense that he failed to maintain a reasonable degree of interest, concern or responsibility as to his welfare;
B. in violation of General Statutes § 17a-112(j)(3)(B), the mother of Johnathan failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of Johnathan, the mother could assume a responsible position in his life; and
C. in violation of General Statutes § 17a-112(j)(3)(D) there was no ongoing parent-child relationship between the father of Johnathan and him, 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 Johnathan.
11. At the time of the filing of the TPR petition, the father's whereabouts were unknown to DCF and notice to him was by publication. On December 24, 2008, the court confirmed service by publication. The father did not appear for the TPR advisement and plea, and he was defaulted.
12. The mother was born in October 1965, and she is forty-three years old. The mother has had a long history of substance abuse, domestic violence and mental health issues.
13. The father was born in May 1937, and he is seventy-two years old. Prior to his last contact in January 2007, with DCF, the father reported that he suffered from diabetes and that he could lose one of his legs.
14. Additional facts are set forth, infra. Unless otherwise specified, all facts set forth in this decision are found by clear and convincing evidence.
LAW APPLICABLE TO TERMINATION OF PARENTAL RIGHTS CASES:
The law applicable to this case is generally set forth in such recent cases as In re Davonta V., 285 Conn. 483 (2008); in In re S.D., 115 Conn.App. (2009); in In re Joseph L., 105 Conn.App. 515, 939 A.2d 16 (2008); in In re Jessica M., 217 Conn. 459, 467-70, 586 A.2d 597 (1991); and in In re Marcus S., 2008 Ct.Sup. 3329, No. H12-CP07-012714-B, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Bear, J., February 29, 2008). See also In re Christine B., 2009 Ct.Sup. 6273, No. H12-CP07-011455-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Bear, J., April 8, 2009).
GENERAL STATUTES § 17A-112(k) FINDINGS:
The court has made findings earlier in this decision, some of which relate to the seven statutory factors applicable to the father. See pages 1-4, supra. In addition to those findings, the court makes the following findings applicable to each parent:
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. The father:
DCF was willing to provide the father with services. In November 2005, DCF placed Johnathan with the father but two weeks thereafter he returned Johnathan to DCF because he could not care for him. On June 20, 2007, the SCJM determined that further services to reunify Johnathan with the father were no longer appropriate. The father's last contact with DCF and with Johnathan was prior to or in January 2007.
B. The mother:
The mother has been offered an extensive amount of services but because of her chronic and debilitating substance abuse and mental health problems she has been unable to benefit from such services. The mother also has a history of transience, inadequate and inconsistent housing, inadequate and inconsistent employment, and domestic violence.
C. Johnathan 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;
visitation;
transportation;
services related to his educational special needs;
foster care services;
and administrative and case management services.
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 the father with Johnathan.
The reasonable efforts made and facilitated by DCF with respect to services for each parent and Johnathan were timely and adequate to address the issues that led to DCF involvement with them and to address the issues that continued or arose after such DCF involvement.
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 July 5, 2006, July 21, 2006, September 29, 2006, April 4, 2008, and November 20, 2008, the court ordered specific steps for the father and/or the mother. The father generally did not in a timely manner perform such steps. See, e.g., exhibit 5, 11. On June 20, 2007, the SCJM determined that further services to reunify Johnathan with the father were no longer appropriate. The father's last contact with DCF and with Johnathan was prior to or in January 2007.
4. The feelings and emotional ties of each 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.
Johnathan has a positive bond with his mother but it is a visiting rater than a parent-child bond. He is aware that his mother is unable to care for him. He knows his biological father but also does not have a parent-child relationship with him. He has no significant memories of or emotional ties to his father.
5. The age of each child:
Johnathan is almost seven 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 throughout this memorandum of decision and in the evidence, the mother has not been able to adjust or improve her circumstances, conduct or conditions to enable her to make it in the best interest of Johnathan to return home to her in the foreseeable future.
As set forth throughout this memorandum of decision and in the evidence, the father has not been able to adjust or improve his circumstances to enable him to make it in the best interest of Johnathan to move in with him in the foreseeable future. Except for two weeks in November 2005, he has not at any time been Johnathan's primary parent.
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 father has been prevented from maintaining a relationship with Johnathan respectively for any reasons other than his circumstances including his age and diabetes.
Such father did not provide specific information concerning his current or past economic circumstances.
There was no evidence presented that the mother has been prevented from maintaining a relationship with Johnathan for any reasons other than her circumstances including chronic substance abuse and mental health problems and inability to rehabilitate.
Such mother did not provide specific information concerning her current or past economic circumstances.
WITH RESPECT TO THE FATHER OF JOHINATHAN, DCF HAS PROVED, BY CLEAR AND CONVINCING EVIDENCE, TILE GROUND A AND D ALLEGATIONS OF ITS TERMINATION OF PARENTAL RIGHTS PETITION.
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, and DCF has made reasonable efforts to locate each parent;
(2) there is no other action pending in any other court affecting custody of Johnathan known to this court. No biological parent has claimed to be affiliated in his or her lineage with any Native American tribe;
(3) on September 29, 2006, Johnathan was adjudicated neglected and by way of disposition he was committed to the care, custody and guardianship of DCF, which commitment, after some modifications, was reinstated and currently is in effect;
(4) prior to filing its termination petitions, DCF was willing to make reasonable efforts to reunify the biological father with Johnathan through offers of and provision of services, but after January 2007, such biological father did not maintain any contact with DCF or Johnathan, did not demonstrate interest in or choose to make himself available for the provision of reunification services, and on June 20, 2007, the SCJM determined that further services to reunify Johnathan with the father were no longer appropriate; from January 2007, such father is and was absent from Johnathan's life and under the circumstances further efforts by DCF were and are not required;
(5) on June 12, 2009, in the Superior Court for Juvenile Matters, Child Protection Session at Middletown, the mother decided to offer her written consent to the termination of her parental rights to Johnathan. She was canvassed, and the court found her consent to be knowingly, voluntarily and intelligently made by her with the adequate advice and the effective assistance of her counsel, and the court accepted such written consent;
(6) Johnathan has been abandoned by the biological father in the sense that such father has failed to maintain a reasonable degree of interest, concern or responsibility as to his health, safety and welfare;
Despite DCF's allegation of multiple adjudicatory grounds in the TPR petition, in the adjudicatory phase the petitioner must prove only one of such grounds by clear and convincing evidence:
"A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition . . . In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights [under § 17a-112(j] exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child." (Internal quotation marks omitted.) In re Trevon G., 109 Conn.App. 782, 787-88, 952 A.2d 1280 (2008).
In re Janazia, 112 Conn.App. 69, 81-82 (2009).
(7) the biological father has no ongoing parent-child relationship with Johnathan, 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 Johnathan; and
(8) DCF has thus proved, as to the father, by clear and convincing evidence, the Ground A and D allegations of its TPR petition.
THE BEST INTEREST OF JOHNATHAN:
The court has considered the best interest of Johnathan. The court has considered whether it is in the best interest of Johnathan to be returned to the mother or to live with the father, who except for two weeks has not at any time been his primary care giver, and who has not been in contact with DCF or with Johnathan since January 2007, including whether the mother or the father 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 Johnathan's " . . . interests in sustained growth, development, well-being, and continuity and stability of [his] environment . . ." In re Ryan R., 102 Conn.App. 608, 625-26 (2007). Unfortunately for Johnathan, each parent has been and currently is unable to provide him such safe, secure, nurturing, stable and permanent environment. On the other hand, in the care of the current foster parent, and otherwise in the care of DCF, Johnathan has made some progress emotionally and in addressing the serious issues that have arisen because of his history and circumstances. However, Johnathan will have to repeat his current grade.
The court finds, by clear and convincing evidence, that it is in the best interest of Johnathan and that it is necessary for his well-being, growth, development, safety, security, stability, continuity, consistency and permanency, that the rights of the biological father and the 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) the mother, with adequate advice from and effective assistance of counsel, consented to the termination of her parental rights to Johnathan;
(b) Johnathan has been abandoned by the father in the sense that such father has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of Johnathan;
(c) the father does not have any ongoing parent-child relationship with Johnathan, 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 (even if such father could be located) would be detrimental to the best interest of Johnathan; and
(d) it is in the best interest of Johnathan to terminate the parental rights of the mother and the father.
Accordingly, it is hereby ORDERED that the parental rights of the mother and the father to Johnathan are hereby terminated.
The commissioner of the department of children and families is appointed as the statutory parent of Johnathan. The initial status report concerning Johnathan 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.