Opinion
Nos. M08-CP06-010181-A, M08-CP06010182-A, M08-CP06010183-A
July 13, 2009
MEMORANDUM OF DECISION
On March 26, 2009, this court terminated the parental rights of the father to Johnson R. ("Johnson"), Armin R. ("Armin") and Max R. ("Max") ("TPR"). In re Johnson R., 2009 Ct.Sup. 5672, No. M08-CP06-010181-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Bear, J., March 26, 2009). DCF was designated by the court as the statutory parent of each of the children. Id., 2009 Ct.Sup. at 5731. On May 7, 2009, the father appealed this court's decision and such appeal is pending.
On June 18, 2009, pursuant to Practice Book §§ 61-11 and 61-12, the father moved for a stay of the court's order terminating the father's parental rights while the father's appeal to the Appellate Court, filed May 7, 2009, was pending. The father also filed a motion for post-TPR visitation while the appeal is pending.
" Sec. 61-11. Stay of Execution in Noncriminal Cases . . . (b) Matters in which no automatic stay is available under this rule[.] Under this section, there shall be no automatic stay in juvenile matters brought pursuant to chapters 26 through 35a . . . (e) Motions to request stay[.] Requests for a stay pending appeal where there is no automatic stay shall be governed by Section 61-12."
" Sec. 61-12. Discretionary Stays[.] In noncriminal matters in which the automatic stay provisions of Section 61-11 are not applicable and in which there are no statutory stay provisions, any motion for a stay of the judgment or order of the superior court pending appeal shall be made to the judge who tried the case unless that judge is unavailable, in which case the motion may be made to any judge of the superior court . . . A temporary stay may be ordered sua sponte or on written or oral motion, ex parte or otherwise, pending the filing or consideration of a motion for stay pending appeal. The motion shall be considered on an expedited basis . . ."
Pursuant to Practice Book § 61-11, there is no automatic stay of this court's decision, a clear policy determination that the status quo prior to the entry of a TPR judgment is not necessarily expected to remain in place pending any appeal of a TPR judgment, e.g., if it chose to do so in the best interest of one or more of the children, DCF could proceed, for example, with the adoption process.
The father's motion to stay execution pending appeal:
In such motion for stay, the father, inter alia, alleged the following:
1. The law as set forth in the Supreme Court's decision in Griffin Hospital v. Commission on Hospitals Health Care, 196 Conn. 451, 493 A.2d 229 (1985), is applicable to the question of whether or not to order a stay pending appeal.
2. The four factors usually considered in determining whether a stay should enter are:
A. the likelihood that the appellant will prevail;
B. the irreparability of the injury likely to be suffered from immediate implementation of the judgment of the court;
C. the effect of a stay upon other parties to the proceeding; and
D. the public interest involved.
3. The father has a good chance of prevailing on appeal.
4. There will be irreparable harm if the stay is not granted.
5. There will not be any harm to the parties if the stay is not granted.
6. There is a strong public interest in a termination proceeding.
In Griffin Hospital v. Commission on Hospitals Health Care, 196 Conn. 451, 455, 493 A.2d 229 (1985), the Supreme Court approved a "balancing of the equities" test in determining whether a stay of the court's decision should be issued during an appeal, and it included standards of the type utilized in connection with whether to issue an injunction:
While we thus approve the "balancing of the equities" test employed by the trial court, we do not in its application eschew such factors as the likely outcome of the appeal, the irreparability of the prospective harm to the applicant, or the effect of delay in implementation of the order upon other parties as well as upon the public interest. We have vested a large measure of discretion in trial judges in terminating or granting stays and, upon review, the issue usually is whether that discretion has been abused.
Griffin Hospital v. Commission on Hospitals Health Care, supra, 196 Conn. at 458-59. With respect to the father's motion for stay, in TPR cases the children are presumably encompassed by the phrase "other parties."
In child protection cases, one focus mandated by statute is permanency for each child. Permanency has also been the focus of Appellate Court review of trial court decisions, such as in In re Davonta V., 98 Conn.App. 42, 907 A.2d 126 (2006), affirmed, 285 Conn. 483 (2008). In such decision, the Appellate Court considered the testimony of a forensic psychologist on the importance of permanency to a child, and such Appellate Court recognized the trial court's discretion to accept such testimony of such forensic psychologist instead of the contradictory testimony of the guardian ad litem.
See, e.g., General Statutes § 17a-110 ". . . Permanency planning for children. Definitions. Procedure after commitment hearing. Regulations. Central registry. Duties of commissioner. (a) As used in this section, "child" means a person under the age of eighteen years; "foster child" means a child placed temporarily in a home, pending permanent placement; "permanent home" means a home for a child with the child's genetic or adoptive parents considered to be such child's permanent residence; and "permanency placement services" means services that are designed and rendered for the purpose of relocating a foster child with such child's legal family or finding a permanent home for such child, including, but not limited to, the following: (1) Treatment services for the child and the genetic family; (2) preplacement planning; (3) appropriate court proceedings to effect permanent placement, including, but not limited to, the following: (A) Termination of parental rights; (B) revocation of commitment; (C) removal or reinstatement of guardianship; (D) temporary custody; (4) recruitment and screening of permanent placement homes; (5) home study and evaluation of permanent placement homes; (6) placement of children in permanent homes; (7) post-placement supervision and services to such homes following finalization of such placements in the courts; and (8) other services routinely performed by caseworkers doing similar work in the Department of Children and Families.
(b) At a hearing held in accordance with subsection (k) of section 46b-129 and section 17a-111b, the court shall determine the appropriateness of continuing efforts to reunify a child with the child's family. If the court finds that such efforts are not appropriate, the Department of Children and Families shall within sixty days of such finding either (1) file a petition for the termination of parental rights, (2) file a motion to revoke the commitment and vest the custody and guardianship of the child on a permanent or long-term basis in an appropriate individual or couple, or (3) file a written permanency plan with the court for permanent or long-term foster care, which plan shall include an explanation of the reason that neither termination of parental rights nor custody and guardianship is appropriate for the child. The court shall promptly convene a hearing for the purpose of reviewing such written plan. When the court finds that the efforts to reunify a child with the child's family are not appropriate, the department shall use its best efforts to maintain such child in the initial out-of home placement, provided the department determines that such placement is in the best interests of the child, until such time as a permanent home for the child is found or the child is placed for adoption. If the permanency plan calls for placing the child for adoption or in some other permanent home, good faith efforts shall be made to place the child for adoption or in some other alternative home."
"When asked her opinion regarding whether termination of the respondent's parental rights was in the child's best interest, Berkowitz replied, `It's likely that that would be the case, because that would prevent a continuation of the children being in legal limbo. Because as long as [the respondent's] parental rights are still in existence, and [the child is] still in foster care, there's always the possibility of a change, so they can't really settle in. They can't really attach to somebody else, and they can still hang on to the fantasy that [the respondent's] going to come back and they're going to live happily together forever after. Whereas if [the respondent's] legal rights are severed, and they attach and they stabilize and they have some permanency and some family belongingness, and then [the respondent] does rehabilitate and is there and could be a kind of extra family resource, there could be some purpose to — if it's in their best interest — for some open adoption or open permanent foster care or contact that would be in their best interest. But otherwise, it's just continuing the psychological limbo that they live in and that they feel like no one wants them permanently.'" In re Davonta V., 98 Conn.App. at 51 (footnotes omitted).
"Although the court heard contradictory testimony from the child's guardian ad litem, Mildred Doody, it was entitled to credit Berkowitz' testimony as more reliable. `It is within the province of the trial court, as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence . . . Where testimony is conflicting the trier may choose to believe one version over the other . . . as the probative force of the evidence is for the trier to determine.' (Citation omitted; internal quotation marks omitted.) Briggs v. McWeeny, 260 Conn. 296, 327, 796 A.2d 516 (2002)." In re Davonta V., 98 Conn.App. at 51-52.
The Supreme Court agreed with the Appellate Court and with the trial court in crediting the testimony of child welfare specialists, and it explained the basis for its agreement and the importance of the concepts of stability, permanency and closure for a child as follows:
Finally, we agree with the Appellate Court that the trial court, in crediting the testimony of the child welfare professionals and terminating the respondent's parental rights on the basis of Davonta's need for stability, permanence and closure, was not merely invoking "empty incantations," as the respondent has claimed. In re Davonta V., supra, 98 Conn.App. 53. This court has "noted consistently the importance of permanency in children's lives. In re Juvenile Appeal (Anonymous), 181 Conn. 638, 646, 436 A.2d 290 (1980) (removing child from foster home or further delaying permanency would be inconsistent with his best interest); In re Victoria B., 79 Conn.App. 245, 263, 829 A.2d 855 (2003) (trial court's findings were not clearly erroneous where much of child's short life had been spent in custody of [commissioner] and child needed stability and permanency in her life); In re Teshea D., [ 9 Conn.App. 490, 493-94, 519 A.2d 1232 (1987)] (child's need for permanency in her life lends added support to the court's finding that her best interest warranted termination of the respondent's parental rights). Virtually all experts, from many different professional disciplines, agree that children need and benefit from continuous, stable home environments." (Internal quotation marks omitted.) In re Jeisean M., supra, 270 Conn. 400-01.
"[S]table and continuous care givers are important to normal child development. Children need secure and uninterrupted emotional relationships with the adults who are responsible for their care." 3 D. Kramer, Legal Rights of Children (2d Ed. Rev. 2005) § 29:11, p. 185; see also J. Goldstein, A. Solnit, S. Goldstein A. Freud, The Best Interests of the Child: The Least Detrimental Alternative (1996) p. 19 ("[c]ontinuity of relationships is essential for a child's healthy development"); see also In re Hanks, 553 A.2d 1171, 1178 (Del. 1989) ("[N]o child can grow emotionally while in limbo, never really belonging to anyone except on a temporary and ill-defined or partial basis . . . To grow, the child needs at least the promise of permanency in relationships and some continuity of environment." [Internal quotation marks omitted]). "Repeatedly disrupted placements and relationships can interfere with the children's ability to form normal relationships when they become adults." 3 D. Kramer, supra, p. 185.
In regard to children who have bonded with their foster parents, "[o]nce new psychological relationships form, separation from the new parents becomes no less painful and no less damaging to a child than separation from natural or adoptive caregiving parents. Indeed, to the extent that such separations are repeated (as in multiple foster care placements), they make the child more vulnerable and make each subsequent opportunity for attachment less promising and less trustworthy than prior ones.' J. Goldstein, A. Solnit, S. Goldstein A. Freud, supra, pp. 104-05. Termination of a biological parent's rights, by preventing further litigation with that parent, can preserve the stability a child has acquired in a successful foster placement and, furthermore, move the child closer toward securing permanence by removing barriers to adoption. See 3 D. Kramer, supra, § 28:2, p. 17. Even if no adoption is forthcoming, termination can aid stability and lessen disruption because a parent whose rights have been terminated no longer may file a motion to revoke the commitment of the child to the custody of the commissioner; see General Statutes § 46b-129(m); or oppose an annual permanency plan. See General Statutes § 46b-129(k) . . .
. . . See Adoption of Nancy, 443 Mass. 512, 517, 822 N.E.2d 1179 (2005) (terminating father's parental rights where children were happy in foster care, though no adoptions imminent and children's counsel opposed termination, because "[s]tability in the lives of children is important, particularly in a case that has continued for a long period of time in the hope that the father could and would successfully rehabilitate himself . . . [and in which] permanence and stability . . . will be eased by termination of their father's rights" [citations omitted]); Rights of F.M., 305 Mont. 189, 193, 24 P.3d 208 (2001) (crediting testimony of experts that termination of mother's parental rights and children's placement in long-term foster care in children's best interests because they "are in need of permanency and stability in their lives in order to effectively progress in their therapy and the continued fantasy of being returned to their mother's care someday was detrimental to the therapeutic process").
In re Davonta V., supra, 285 Conn. at 494-97. In this case, the children have been in DCF care since July 10, 2006, a period of three years.
The Appellate Court has "recently observed that `[t]he 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).]" In re Halle T., supra, 96 Conn.App. 815, 817, 902 A.2d 670 (2006). In such decision, the Appellate Court also noted:
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.
In In re Rachel J., 97 Conn.App. 748, 761, 905 A.2d 1271 (2006), the Appellate Court noted, with respect to a claim that the trial court erroneously found that it was in the child's best interest to terminate the parental rights of the respondent parent:
The respondent offers scant analysis of this claim, which is predicated solely on the court's finding that a bond existed between [minor child] R and the respondent. Our courts consistently have held that even when there is a finding of a bond between parent and a child, it still may be in the child's best interest to terminate parental rights. See, e.g., In re Tyqwane V., 85 Conn.App. 528, 536, 857 A.2d 963 (2004); In re Ashley S., 61 Conn.App. 658, 667, 769 A.2d 718, cert. denied, 255 Conn. 950, 769 A.2d 61 (2001); In re Quanitra M., 60 Conn.App. 96, 106, 758 A.2d 863, cert. denied, 255 Conn. 903, 762 A.2d 909 (2000). Furthermore, the existence of a bond between parent and child can spawn negative consequences, such as in this case, in which R attempted to protect the respondent from discovery of the abuse.
(Footnotes omitted.)
As in Davonta V., the trial court in Halle T. focused on the child's need for permanency:
The court, in considering the best interest of the child, inter alia, focused on her need for permanency, the positive situation with the foster parents and the respondent's continuing inability to obtain a competent understanding of her medically complex status and its corresponding negative long-term effects on her future development.
In re Halle T., supra, 96 Conn.App. at 841.
Taking into consideration the compelling evidence placed before it, inter alia:
(a) of the father's continuing failure to parent and to protect his children, despite being offered and receiving "a remarkable number of and exhaustive list of individual services and services relating to his children from or facilitated by DCF for purposes of reunification . . .," CT Page 12429 In re Johnson B., supra, 2009 Ct.Sup. at 5680;
(b) of the father's minimization and/or denial of his need for such services, id., at 5686;
(c) that the father is not competent and not restorable, id., at 5675;
(d) of the father's approximately fifteen-year history of parenting deficiencies related to and/or caused by chronic substance and/or alcohol abuse, continuing mental health problems, cognitive limitations, negative behavior including domestic violence and dysfunctional interactions with the children, id., at 5684-85;
(e) of the father's dysfunctional relationship with the mother with whom he resides and her negative, disabling behavior, and her negative behavior and issues that directly impacted the children, see, e.g., id., at 5673-74; and
(f) of the other impediments to the father's ability adequately to parent any of the children delineated in the evidence presented at the TPR hearing some of which is set forth in the March 26, 2009, decision;
if the court were to enter a stay of its TPR orders and judgments, it would deny each of the children such long-awaited opportunity for stability, permanency and closure necessary for their safety, security, development and happiness.
The court concludes that the father does not have a reasonable likelihood of success on appeal. Thus, the irreparability of the prospective harm to the father is non-existent. The effect of delay in implementation of the TPR judgment and orders upon the children is significant. The impact of a delay of the court's orders upon the state's parens patriae interest is significant given DCF's duty, obligation and responsibility to provide stability, permanence and closure for children in its care, custody and guardianship and for whom it is statutory parent.
In In re Halle T., supra, 96 Conn.App. at 822, the Appellate Court set forth the standard of review and legal principles pertaining to a TPR appeal:
At the outset, we note the standard of review and legal principles germane to our discussion. "Our standard of review on appeal from a termination of parental rights is whether the challenged findings are clearly erroneous . . . The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous . . .
"On appeal, our function is to determine whether the trial court's conclusion was legally correct and factually supported . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. Rather, on review by this court every reasonable presumption is made in favor of the trial court's ruling." (Citations omitted; internal quotation marks omitted.) In re Sheena J., 63 Conn.App. 713, 719-20, 778 A.2d 997 (2001); see also In re Javon R., 85 Conn.App. 765, 768-69, 858 A.2d 887 (2004); In re Kristy A., 83 Conn.App. 298, 305-06, 848 A.2d 1276, cert. denied, 271 Conn. 921, 859 A.2d 579 (2004).
See also In re Brittany J., 100 Conn.App. 329, 334, 917 A.2d 1024 (2007).
The court thus concludes that entry of a stay will cause harm to the children by delaying stability, permanence and closure for them, and the court denies the father's pending motion for such stay.
The father's motion for post-TPR visitation:
On June 18, 2009, allegedly pursuant to General Statutes § 46b-121(b), the father filed a motion for post-TPR visitation. General Statutes § 46b-121(b) provides in part as follows:
On June 19, 2008, the Superior Court for Juvenile Matters ("SCJM") found the father to be not competent and not restorable to competency and such court appointed a guardian ad litem for the father. Those circumstances continued to exist on July 9, 2009, the date of the hearing on the father's motions.
Although this statute was set forth as a basis for the motion, the portion of it that the father relies on to provide a basis for the visitation order sought from the court was not identified in such motion or in any memorandum of law. No decision where General Statutes § 46b-121(b) was the authority for a post-TPR visitation order in favor of a parent was cited by the father.
In juvenile matters, the Superior Court shall have authority to make and enforce such orders directed to parents, including any person who acknowledges before said court paternity of a child born out of wedlock, guardians, custodians or other adult persons owing some legal duty to a child, youth or youth in crisis therein, as it deems necessary or appropriate to secure the welfare, protection, proper care and suitable support of a child, youth or youth in crisis subject to its jurisdiction or otherwise committed to or in the custody of the Commissioner of Children and Families . . . Said court shall also have authority to grant and enforce injunctive relief, temporary or permanent in all proceedings concerning juvenile matters . . . Any judge hearing a juvenile matter may make any other order in connection therewith that a judge of the Superior Court is authorized to grant and such order shall have the same force and effect as any other order of the Superior Court. In the enforcement of its orders, in connection with any juvenile matter, the court may issue process for the arrest of any person, compel attendance of witnesses and punish for contempt by a fine not exceeding one hundred dollars or imprisonment not exceeding six months.
(Emphasis supplied.) In the July 9, 2009, hearing the father asserted that the above reference to "guardians" authorizes this court to order DCF "to secure the welfare" of the children by providing post-TPR visitation to the father. The father could not cite the court to, and the court could not find, any decision supporting such interpretation of such statute.
The father alleged (but did not prove) that he "has a strong bond with his sons." He admitted that his visitation with such children was stopped for approximately one year prior to the TPR hearing that occurred on March 3, 4, and 23, 2009. He had one visit with such children shortly before the TPR hearing, and he alleged (but did not prove) that such visit "went well" (however, Max refused to attend such visit). The father also alleged that the evidence at the trial showed that such children "want to visit with their father . . ." but he did not offer any portion of the trial transcript or any exhibit in support of this allegation. The relief sought by the father is that "visitation be resumed on a weekly basis and father be allowed to contact his sons by telephone and letter."
The father testified at the July 9, 2009, hearing on the motions that his older sons had telephoned him (presumably after this court's March 26, 2009, decision), but he was unable with clarity or precision to state when and how many times this occurred.
Several trial court decisions refer to or discuss requests for post-termination visitation, but in none of such decisions is post-termination visitation actually ordered by the court.
In In the Interest of Felicia B., Superior Court for Juvenile Matters, Child Protection Session, Judicial District of Middletown, 1998 Ct.Sup. 15649, 15654 (Quinn, J., December 29, 1998), affirmed, 56 Conn.App. 525, 743 A.2d 1160 (2000), the trial court stated that the purpose of a TPR judgment, inter alia, is to vest legal authority over the children with the statutory parent (DCF in this case) and to grant such statutory parent the right to make decisions about each of such children's future life and his contact with other persons based on his or her current best interest:
While the court treated the motion for visitation as amended as a request for transfer of guardianship, the testimony of the paternal relatives and the arguments of counsel for custody and visitation continued to reflect their confusion about the purpose of the dispositional hearing. When disposition is being considered in [ ] termination of parental rights cases, any visitation order would be inconsistent with the judgment being sought. The purpose of such a judgment is to vest legal authority over the children with the statutory parent or the guardians and to grant such entities or individuals the right to make decisions about the children's future life and their contact with others. As reflected in the language of Connecticut General Statutes § 46b-59, quoted by the intervenors, when parental rights or adoption are being considered by a court of competent jurisdiction, termination of visitation orders issued under that statute may also be ordered. The intervenors also sought to challenge the propriety of DCF's determination to prohibit visitation during the pendency of the co-terminous petitions. While there might be a time and place for such a challenge, such concerns are not relevant to the dispositional phase of termination petitions, where the focus is on what is presently in the best interests of the children.
At the dispositional 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, 357, 641 A.2d 378 (1994). Even had there been such existing visitation, any permanent placement orders would require the end to such visitation, unless the children were placed with their relatives . . .
In footnote 2 of such decision, Judge Quinn added:
Connecticut General Statutes § 17a-112(i) contemplates in the event of termination of parental rights that either the Commissioner of the Department of Children and Families or another child placement agency will become the statutory parent of the children or that there will be a transfer of guardianship to an individual or individuals who become the guardians of the persons of the children. It does not contemplate custody of the children being awarded to third parties or visitation as in the dissolution of marriage context, Connecticut General Statutes § 46b-59, which states that any such visitation rights which might have been awarded may be terminated when there is an action regarding "the parental rights with respect to such child or the adoption of such child."
In a second decision, In the Interest of Steven J., Superior Court for Juvenile Matters, Child Protection Session at Middletown, 2000 Ct.Sup. 8398, 8406 (Quinn, J., July 18, 2000), the court ruled that in a TPR case, any visitation order was inconsistent with a TPR judgment:
However, in considering the appropriate disposition in a termination of parental rights case, any visitation order would be inconsistent with the judgment being sought. The purpose of a termination judgment is to vest legal authority over the children with the statutory parent, adoptive parents or the guardians and to grant such entities or individuals the right to make decisions about the children's future life and their contact with others. As reflected in the language of Connecticut General Statutes § 46b-59, when parental rights or adoption are being considered by a court of competent jurisdiction, termination of visitation orders issued under that statute may also be ordered . . .
In In the Interest of Kachainy C., Superior Court for Juvenile Matters, Child Protection Session at Middletown, 2000 Ct.Sup. 8710, 8720 (Rogers, J., July 26, 2000), affirmed, 67 Conn.App. 401, 787 A.2d 592 (2001), the court recognized the special circumstances both of the biological mother and Kachainy who had life threatening illnesses, but did not order DCF to arrange for post-TPR visitation:
Finally, this is not a case where the mother should be precluded from having contact with her daughter in the time that both of them have remaining in their lives. They enjoy a comfortable visiting relationship and Kachainy enjoys visiting with her siblings who live with Nilda. The court therefore strongly recommends that DCF allow visitation to continue during the time period it remains the statutory parent of this child and that it encourage the adoptive mother to allow visitation in the future. Visitation should continue so that Kachainy's mother, in whatever small way, can continue to offer Kachainy love, comfort and support.
Instead of an order directing DCF to provide such visitation, the court "strongly recommended" and "encourage[d]" such visitation.
In In re Meagan B., No. F04-CP02-005358-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown, 2005 Ct.Sup. 11935-ce, 11935-ce (Jongbloed, J., Aug. 31, 2005), the court also recognized that post-TPR visitation was inappropriate and set forth the following:
After considering the children's sense of time, their need for a secure and permanent environment, the need to avoid future placements, and the totality of circumstances, the court concludes that termination of parental rights of respondent mother and father is in the children's best interest. It is accordingly, ORDERED that the parental rights of Tammi W. and Roger B. are hereby terminated as to the children Meagan and Brandon B. The Commissioner of the Department of Children and Families is hereby appointed the statutory parent for the children.
With regard to the visitation requested by father, in view of the court's orders terminating parental rights, visitation is not appropriate with the children and they have not expressed a desire for visitation. Nevertheless, the court encourages DCF to consider whether a final visit with father would be in the children's best interest at this time.
Thus, although the court concluded that post-TPR visitation was "not appropriate," it "encouraged DCF to consider whether a final visit with father" was in the children's best interest. Such discretion was within DCF's authority as statutory parent. In this case, in determining whether it should facilitate any such visitation, DCF would presumably consider the father's current psychiatric issues and disabilities, and his history of abusive behavior and threatening actions toward DCF workers who attempted to facilitate the father's visitation prior to the March 2009, TPR hearing and this court's March 26, 2009, decision.
In In re Nathaniel S., Superior Court for Juvenile Matters, Fourteenth District/Plainville, 1992 Ct. Sup. 3222 (Goldstein, J., April 10, 1992), the court also did not order post-TPR visitation but instead expressed its expectation concerning the wishes of the child if such wishes were in his best interest:
However, the court expects that Nathaniel's wish to maintain some reasonable contact with his mother will be honored by DCYS and any prospective adopting family. 46b-59; Michaud v. Wawruck, 209 Conn. 407, 551 A.2d 738 (1988). Nathaniel is already old enough to initiate contact by phone with his mother. He is wise enough to recognize his need to bond, but is unwilling to cavalierly discard his natural mother. His wishes should be respected if in his best interest.
In In re Tra'von W., 2008 Ct.Sup. 5411, 5442, No. H12-CP04-010019-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Wilson, J., April 1, 2008), the court did not order post-TPR visitation but instead made a recommendation for visitation post-adoption:
Recognizing that there is a bond between Tra'von and the respondent father, Joel S., this court recommends that visitation continue between Tra'von and the father post-adoption.
In In re Kyon G., 2007 Ct.Sup. 10945, 10970-71, No. H12-CP03-008877-A, Superior Court, Judicial District of Middlesex, Juvenile Matters at Middletown (Wilson, J., May 11, 2007), the court recommended but did not order post-TPR and post-adoption visitation "if therapeutically appropriate":
The court recognizes the strong bond that exists between the boys, their mother and their extended family members. The court therefore recommends that supervised visitation continue up to and post-adoption if therapeutically appropriate.
Although some of the foregoing decisions were written before General Statutes § 17a-110a became effective in 2003, see In re Justin F., 2008 Ct.Sup. 19594, No. N05-CP04-004754-D, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Bear, J., December 9, 2008), such statute, which provides authority to DCF instead of the court to determine visitation for children in its temporary custody or committed to it prior to a TPR judgment being entered, also supports allowing DCF as statutory parent instead of the court to determine whether there should be any visitation after a TPR judgment is entered. As set forth in the Justin F. decision where the children had been committed to DCF (but no TPR judgment had been entered):
As set forth above . . ., the family has not been an intact family for in excess of four years and during that period of time no judge who has heard any matter in this case has determined that there is a basis for immediate reunification and that such children should be returned to the parents. Having DCF determine, pursuant to General Statutes § 17a-10a, the requirements of the amount, type and location of visitation that is in the best interest of Justin and Hailee when DCF has the benefit of its workers' observations, school reports and the input of the children's therapist does not violate the constitutional rights of the parents.
Pursuant to Practice Book § 61-11 (see fn 1, supra), there is no automatic stay of this court's TPR decision, a clear policy determination that the status quo prior to the TPR judgments is not expected to remain in place pending any appeal of a TPR judgment.
However, the father's General Statutes § 17a-10a opportunity for pre-TPR visitation in this case had effectively been suspended by the SCJM prior to the TPR hearing because of the father's abusive behavior and threats to DCF workers attempting to facilitate such visitation in the best interests of the children. See General Statutes § 17a-10a(a) and (b).
Such denial of an order of visitation is in keeping with the irrevocable effect of a TPR judgment, especially in a case where the evidence supporting the termination of parental rights in the best interest of the children is overwhelming. General Statutes § 17a-93(e) provides for the complete severance of the parent-child relationship after a TPR judgment is entered:
In this case, as in every case where children are removed from their biological parents and the parents eventually are respondents in a TPR proceeding, the ideal result prior to the TPR hearing would have been timely and successful reunification between one or both biological parents and the children. Unfortunately, in many cases, including this case, such biological parents were unwilling or unable in a timely manner over a period of many years to take the actions necessary to make it in the best interest of the children to be reunified with either or both of them.
"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 . . .
The complete severance of the parent-child relationship after termination has been recognized by the United States Supreme Court:
A termination of parental rights is both total and irrevocable. Unlike other custody proceedings, it leaves the parent with no right to visit or communicate with the child.
M.L.B. v. S.L.J., 519 U.S. 102, 118, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996), quoting Lassiter v. Dept. of Social Services, 452 U.S. 18, 39, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) (Blackmun, J., dissenting). (Internal quotation marks omitted.)
The relationship between the need for a stay of the court's judgment of termination and post-TPR visitation was discussed in In re Amy H., 56 Conn.App. 55, 61, 742 A.2d 372 (1999):
The respondent next claims that the trial court had no authority to enter, sua sponte, protective orders regarding visitation between Amy and the respondent under Yontef v. Yontef, supra, 185 Conn. 275. Specifically, the court ordered that no visitation would be granted pending appellate resolution of the case and subsequent retrial if ordered. We hold that the respondent cannot successfully challenge the visitation order because he did not move for a stay of execution.
Practice Book § 61-11 provides in relevant part that "proceedings to enforce or carry out the judgment shall be automatically stayed until the time to take an appeal has expired; if an appeal is filed, such proceedings shall be stayed until the final determination of the cause . . . This section shall not apply . . . to juvenile matters brought pursuant to chapters 26 through 35 [of the Practice Book, which govern procedure in juvenile matters] . . .
In the present case, the respondent did not move for a stay of execution. Hence, his visitation rights were extinguished when his parental rights were terminated. See Practice Book § 61-11. Accordingly, we hold that the respondent cannot successfully challenge the court's visitation order because the order terminating his parental rights was not stayed.
Having heard the interested parties and having considered the motions filed by the father for stay of execution and for visitation, each such motion is hereby denied.