Opinion
Nos. L15-CP05-008039-A, L15-CP06-008191-A
October 28, 2011
MEMORANDUM OF DECISION
I STATEMENT OF CASE
Before the court for consideration at this time are neglect petitions, motions to review permanency plan and motions for visitation. The parties to this matter are: petitioner, Commissioner of Children and Families (DCF or department); respondent mother, Karin H.; respondent father, Joseph W.; and the children, Joseph W. and Daniel W.
The matter was tried on September 26 and 28, 2011. The following witnesses testified at trial: Cathy S. (foster parent); Elizabeth Nulty (behavioral analyst); Dr. Stephen Humphrey (clinical psychologist), father, and mother. Numerous exhibits were received into evidence by agreement, including transcripts of witness testimony from the prior trial. The following witnesses testified during the prior trial in September 2008: Kathy Dayner (DCF social worker); Dr. Stephen Humphrey (psychologist); Pam Lucier (DCF social worker); Dr. David Krulee (psychiatrist); Cathy S. (foster parent); Dr. Richard Sadler (psychiatrist); Michael Harte (visitation supervisor from Delta-T Group/Kaleidoscope Family Solutions); Dr. Warren Corson, III (psychologist); Rosalie (Sally) Guest (licensed counselor); Dr. Brett Steinberg (psychologist); Elizabeth Nulty (behavioral analyst); Marie Coutant-Skinner (parent education coordinator — McCall Foundation-PEAS); father; Maime W. (paternal grandmother); Nancy G. (paternal aunt); mother; Dr. Logan Green (psychologist); Thomas Murray (father's friend); Geraldine Menn (GAL, children's attorney); and Robert W. (paternal uncle). The court took judicial notice of these cases and In re Kristina H., Docket No. L15-CP02-007724-A.
The court finds that it has proper jurisdiction of the matter, notice of the proceeding was provided, and no action is pending in any other court affecting the custody of the children.
The court has fully considered the criteria set forth in the relevant Connecticut General Statutes, as well as the evidence, applicable case law, demeanor and credibility of the witnesses, and arguments of the parties in reaching the decisions reflected in the orders that issue in this memorandum. After due consideration, the court grants the neglect petitions, grants the motions to review permanency plan and denies the motions for visitation.
II FINDINGS OF FACT
Having weighed all the evidence and assessed the credibility of the witnesses, the court finds the following relevant facts.
A Procedural History
The department has been involved with mother since 2002, when her oldest child Kristina H. (d.o.b. 10/9/02) was born and subsequently removed by the department. At the time of Kristina's birth, mother presented with concerning behaviors at the hospital. Her mental health issues impaired her ability to safely parent her infant. From 2002 to 2005, the department worked with mother to address the child protection concerns.
In 2005, the respondents failed to inform DCF of mother's pregnancy. The respondents subsequently left the State of Connecticut to avoid having the newborn removed from their care. Joseph was subsequently born in Lackawanna County, Pennsylvania on July 19, 2005. The local child protection agency became involved after receiving a referral from the hospital regarding mother's bizarre behavior and the respondents' failure to provide accurate information with respect to their housing situation and financial status. Father appeared to lack insight as to mother's mental health issues and their implications for the child's safety and well-being. DCF was contacted. On July 21, 2005, Pennsylvania child protection authorities placed a hold on the child to prevent him from being discharged to the respondents and obtained a court order which stated that custody of the child would be assumed by the State of Connecticut once a custody order was secured there. On July 21, 2005, an ex parte motion for temporary custody (OTC) was filed at the Torrington Juvenile Court and granted by the court (Goldstein, J). Accompanying the OTC was a neglect petition for Joseph based on denied proper care. The following jurisdictional facts were alleged for Joseph: "Mother has a significant and long standing mental health condition that impairs her ability to safely parent her child. Despite the provision of psychiatric services, mother has failed to benefit from said services. Father has no insight or acceptance of [mother]'s psychiatric impairment and the implications they have for this child. By virtue of the child's age, he requires a competent and responsible caregiver." Joseph was subsequently returned to Connecticut and placed in the current foster home.
A contested OTC hearing for Joseph was scheduled for August 5, 2005. After hearing, the court sustained the OTC and ordered specific steps for the respondents, which were signed by the respondents on August 17, 2005. Over the next year, the department made referrals for services and evaluations to address the child protection concerns.
Daniel was born on July 20, 2006. On July 24, 2006, DCF filed an ex parte OTC for Daniel, which was granted by the court (Trombley, J.) that day. Specific steps were ordered. Accompanying the OTC was a neglect petition for Daniel based on denied proper care and conditions injurious. The following jurisdictional facts were alleged for Daniel: "Mother has unresolved mental health issues that prohibit her from adequately caring for the child. Despite the provision of psychiatric services, mother has failed to avail herself of or benefit from said services. Father fails to recognize the mother's mental health issues and how they negatively impact her ability to care for the child. Father has not demonstrated an ability to care for the child independent of the mother. By virtue of the child's age, he requires a competent and responsible caregiver." After being discharged from the hospital, Daniel was placed in the current foster home.
A contested OTC hearing for Daniel was scheduled on August 11, 2006, at which the court (Bear, J.) sustained the OTC by agreement. Specific steps were ordered, including restrictions on mother's access to father's residence. The children's cases were consolidated going forward. The specific steps were modified on November 15, 2006. On January 2, 2007, mother's visitation was reinstated by agreement.
On January 17, 2007, the court (Bear, J.) issued a decision in the matter of In re Kristina H. terminating mother's parental rights.
On April 3, 2007, DCF filed a motion to review permanency plan of reunification with father. On April 11, 2007, mother filed an objection to the permanency plan asserting that reunification with her continued to be an appropriate plan.
The pending matters were scheduled for trial. On August 2, 2007, mother entered a no contest plea to conditions injurious. The court (Wilson, J.) adjudicated the children neglected and committed them to the department. The memorandum of hearing indicated that father "Stands Silent." The court also approved a permanency plan of reunification with the respondents. On October 18, 2007, father filed a motion to modify commitment to protective supervision. On November 28, 2007, father filed a motion to open judgment re: adjudication of neglect, as to respondent father. The motion was denied by the court (Bear, J.) on May 30, 2008.
On December 10, 2007, DCF filed TPR petitions for the children seeking to terminate mother's rights based on failure to rehabilitate (B1) and failure to rehabilitate-prior TPR (E) and father's rights based on failure to rehabilitate (B1). See DCF's motion for technical correction, dated August 20, 2008.
On February 22, 2008, DCF filed for a motion to review permanency plan of termination of parental rights and adoption. On February 28, 2008, father filed a motion to modify orders for parental visitation, which was denied by the court (Bear, J.) on May 16, 2008. On March 4, 2008, father filed an objection to permanency plan. Mother filed a motion for expanded visitation, dated February 19, 2008, which was denied by the court (Bear, J.) on May 16, 2008. Mother filed an objection to permanency plan, dated February 22, 2008. On April 30, 2008, the court (Goldstein, J.T.R) consolidated the motions to review permanency plan and TPR petitions for trial.
On May 16, 2008, the court (Bear, J.) heard father's motion to open judgment re: adjudication of neglect, the respondents' motions regarding visitation and motion for in-court review re: reoccurring injuries of minor child in foster care, dated May 12, 2008. On May 30, 2008, the court (Bear, J.) entered the following order: "The respondent-father's motion to open the judgment of neglect filed on November 29, 2007, having been heard by this Court, it is hereby ordered that the relief sought in such motion, e.g., that the judgment of neglect be opened, is hereby denied, but such respondent-father (but not the respondent-mother who did not seek similar relief) shall be permitted on or before August 12, 2008, fourteen days before the termination of rights trial scheduled to commence on Tuesday, August 26, 2008, to file a pleading with the court, copies certified to counsel, that he continues to seek a trial on the issue(s) of whether Joseph and Daniel were neglected as alleged by DCF in each respective neglect petition, and if such pleading timely is filed by such respondent-father, despite the prior adjudications of neglect and dispositions of commitment entered on or about August 2, 2007, upon the nolo contendere pleas of the mother, at such trial DCF also shall have the burden to prove by a fair preponderance of the evidence that Joseph and Daniel were neglected. Such prior commitments of Joseph and Daniel to the care, custody and guardianship of DCF shall remain in effect until further order(s) of this Court."
On June 16, 2008, DCF filed a motion for reconsideration of Judge Bear's order of May 30, 2008. On July 9, 2008, the court (Bear, J.) granted the reconsideration and did not change the order.
On June 24, 2008, father filed a request for neglect trial per order of May 30, 2008, motion to clarify and objection to DCF's motion to reconsider.
On July 9, 2008, the court (Bear, J.) entered the following order: "The court will allow the father to have a neglect hearing. The neglect hearing is consolidated with the TPR trial. Mother's adjudication and the children's commitment still stand."
On August 20, 2008, DCF filed a motion for technical correction, which was granted by the court (Olear, J.) on September 4, 2008.
On August 20, 2008, father filed a motion for advice re: separate trials or bifurcation. DCF filed an objection on August 21, 2008. On August 25, 2008, the motion was denied.
On August 21, 2008, the department filed a motion for reconsideration, which was denied on August 25, 2008.
On August 25, 2008, the court (Bear, J.) issued an order regarding father's motion to open judgment of neglect, filed on November 29, 2007.
On September 3, 2008, DCF filed a motion for judicial notice, which was granted in part by the court (Olear, J.) on September 4, 2008.
In September 2008, the court (Olear, J) tried the pending neglect and TPR matters. On September 4, 2008, the court found that the father was non-custodial. On October 1, 2008, the court issued a decision terminating the parental rights of the respondents and approving the permanency plan of termination of parental rights and adoption. Judgment entered accordingly.
On January 7, 2009, the court (Olear, J.) issued a memorandum of decision re: motions for stay and visitation.
On January 22, 2009, DCF filed a motion to review permanency plan of TPR and adoption. On March 30, 2009, the court (Esposito, J.) approved a permanency plan of TPR and adoption. On December 31, 2009, the department filed a motion to review permanency plan of termination of parental rights and adoption. On January 20, 2010, the court (Eschuk, J.) approved a permanency plan of termination of parental rights and adoption and found that the department made reasonable efforts to achieve the permanency plan.
On February 9, 2010, the court (Olear, J.) issued a response to Appellate Court order for articulation.
On June 8, 2010, the Appellate Court reversed the adjudication of neglect and termination of parental rights of the respondents. See In re Joseph W., 121 Conn.App. 605, 997 A.2d 512 (2010).
On October 14, 2010, the department filed a motion to review permanency plan of termination of parental rights and adoption. On December 1, 2010, the court (Upson, J.) approved the permanency plan of termination of parental rights and adoption and found the department had made reasonable efforts to achieve the plan.
On June 28, 2011, the Supreme Court upheld the Appellate Court's decision and remanded the matter for an expedited trial. See In re Joseph W., 301 Conn. 245, 21 A.3d 723 (2011).
On July 28, 2011, the court (Bentivegna, J.) held an in-court review and addressed issues related to legal representation and scheduling. Trial dates were set.
On August 26, 2011, mother filed a motion for visitation to recommence visitation with the mother and children.
On September 12, 2011, the attorney for the child filed a motion to consolidate mother's motion for visitation with the neglect/TPR trial, which was granted on September 21, 2011.
On September 16, 2011, the department filed motions to review permanency plan of termination of parental rights and adoption. On September 26, 2011, mother filed an objection to the permanency plan.
On September 19, 2011, father filed a motion to bifurcate the neglect petition and TPR petition. Mother filed a similar motion to bifurcate on September 21, 2011.
On September 21, 2011, the court consolidated for trial the neglect petitions, motions to review permanency plans and motions for visitation and bifurcated the TPR petitions for later trial.
On September 23, 2011, the respondents filed a request pursuant to the Americans with Disabilities Act (ADA) asking for relief before going forward on the neglect trial. Before the trial commenced on September 26, 2011, the court addressed the ADA request and noted that the ADA neither provided a defense to nor created special obligations in a child protection proceeding, and a child protection proceeding is not a "service, program or activity" under the ADA and proceeded with the trial. See In re Antony B., 54 Conn.App. 463, 472, 735 A.2d 893 (1999); and In re Brendan C., 89 Conn.App. 511, 526-27 (2005). The request was denied.
On September 26, 2011, father filed a motion for visitation requesting that visits recommence pending the outcome of the TPR petition, which was also consolidated with the pending trial. The trial on all the pending matters besides the TPR petitions was completed on September 28, 2011.
B Historical Facts (1) Department's Involvement
The department has been involved with mother since October 2002 and with father since July 2005. During the department's involvement, the child protection concerns have included mother's mental health issues, mother's inability to parent, father's failure to recognize mother's mental health limitations, father's mental health issues, respondents' parenting deficits, and respondents' failure to cooperate with recommended services.
(2) Mother
The mother, Karin H., was born in Waterbury, Connecticut on November 14, 1967, and is 43 years old. She grew up in Watertown, Connecticut. She reported using marijuana, beer, mixed drinks, Dexatrim and speed while in high school. During high school, she was hospitalized for a seizure and had a tumor removed from her brain. After the surgery, she went back to school and graduated in 1985. She later required additional medical treatment related to her brain tumor. She attended some classes at Mattatuck Community College.
Mother has held a variety of jobs. Some jobs lasted only days; while others lasted for years. In July 1987, she completed a medical administrative assistant course and eventually found a job at a doctor's office. She had difficulties working full-time and was fired after a few months. Over the next few years, she worked on and off as a medical assistant at several doctors' offices in Connecticut before moving to Florida for a period of time. She also worked for awhile in Colorado where her sister lived. She worked as a cashier and waitress. She was fired on numerous occasions based on job performance and inability to get to work on time. After Kristina was born, mother did not work regularly for several years. From 2001 to 2004, she worked at a gas station where she met father. In 2008, she began working part-time at McDonalds.
Mother testified that she separated from father several years ago. They were no longer a couple and had not been for years.
During the trial, considerable evidence was presented regarding the department's efforts to address mother's child protection concerns. Since 2002, the department has referred mother for numerous services, including Connecticut Resource Group, Dr. Heather Toll (individual counseling); Family Intervention Center (individual counseling and medication management); Dr. Anthony Campagna, Ph.D. (individual counseling); Dr. Brett Steinberg, Ph.D. (individual counseling); Dr. Warren Corson, III, Ph.D. (individual and family counseling); Northwest Center for Families (mental health-parent aide); McCall Foundation-Parent Education and Assessment Services (PEAS) program (parenting education). During this period, mother has participated in several evaluations and a formal sleep study. Based on these evaluations, she received diagnoses of schizotypal personality disorder, attention deficit hyperactivity disorder, narcolepsy, personality disorder nos, and personality change due to sequelae of brain tumor removal. Each evaluator recommended that mother engage in services, including mental health services, medication management, in-home parenting services and parenting education. Mother failed to fully cooperate with services recommended.
In December 2002, mother engaged in a court-ordered psychological evaluation with neuropsychologist, Dr. Diana Badillo-Martinez. Dr. Martinez recommended individual counseling. However, mother failed to engage in individual counseling until April 2004, when she started seeing Dr. Toll. Dr. Martinez also recommended a comprehensive neurological evaluation/EEG and individual counseling services were recommended. Mother indicated that she plan to talk to her neurologist, Dr. Roger Bobowick, M.D. The department was unable to confirm whether mother had a comprehensive neurological exam/EEG because she refused to sign a release for Dr. Bobowick.
In February 2003, mother participated in a psychiatric evaluation with Dr. Richard Sadler, M.D. Dr. Sadler concluded that mother failed to demonstrate an understanding of the needs of her child that would allow her adequately meet the child's needs. Mother had chronic functional impairments and was diagnosed as having a schizotypal personality disorder. Mother demonstrated an inability to assess accurately her child's health, state and needs. These issues raised significant concerns regarding her parenting ability. Dr. Sadler noted that the description of mother's care of her child during visits suggested "a consistent pattern of her misunderstanding and mishandling her infant in a manner which strongly suggests a lack of empathy, lack of understanding, failure to accept instruction, and a denial of the overt state of her infant. No suggestion that [mother] has learned more appropriate parenting techniques, has formed a better understanding of or has developed any indication of an improving relationship with her child was presented . . . she has demonstrated no better ability to care for or even to identify correctly her child's most simple and basic needs." Petitioner's Exhibit No. 23, p. 15. Mother persisted in her belief that she had no emotional, personality, interpersonal problems. She did not believe that she needed psychiatric treatment and had no recognition of her impairments and no awareness that her own functioning impaired her ability to parent her child. Mother failed to demonstrate an ability to alter her behaviors in order to become an appropriate caretaker for her child. In Dr. Sadler's opinion, mother's prognosis was poor in terms of her ability to address her issues. Mother failed to demonstrate an understanding of her child's needs that would allow her to adequately parent her child and had not demonstrated an ability to improve her level of functioning with the help of services.
In September 2003, mother participated in another evaluation with Dr. Sadler that included a supervised visitation with Kristina. Dr. Sadler concluded that due to mother's continuing impairments there were serious concerns regarding her ability to resolve her parenting deficits. He remained quite concerned regarding mother's ability to provide adequately for Kristina's needs. Dr. Sadler reported that "[c]ontinuing impairments are seen in a more subtle form, no longer to the psychotic extreme that was previously seen, yet they continue. In the context of having had one year to address these concerns and to attend to her own emotional reactions and physical stress, [mother] has continued to show serious impairments in the parent-child relationship. I now have great concern as to [mother's] ability to resolve these parenting deficits . . . in the absence of any other apparent explanation for the lack of reciprocity in the mother-child relationship, my concerns are grave regarding [mother]'s ability to raise Kristina successfully." Petitioner's Exhibit No. 24, p. 7.
In November 2003, mother engaged in a psychiatric evaluation with Dr. Jeremy August, M.D., who thought that mother would benefit from psychotherapy but noted her reluctance to do so for fear of being labeled a "mental case."
From April 2004 to April 2005, mother was engaged in clinical services with Dr. Heather Toll, Ph.D. of the Connecticut Resource Group. Dr. Toll reported that mother had significant comprehension issues and needed to be on medication. In January 2005, Dr. Toll referred mother for medication management through the Family Intervention Center, Waterbury, Connecticut. Mother saw Dr. Toll for approximately one year, until Dr. Toll went on maternity leave. Mother next was referred to the Family Intervention Center where she stared counseling and medication management in the spring, 2005. In November 2005, she was discharged from the Family Intervention Center for failure to keep appointments and non-compliance.
In August 2004, mother engaged in a sleep disorder evaluation with Dr. Daniel McNally, M.D. at University of Connecticut Medical Center, which confirmed mother's diagnosis of narcolepsy. Dr. McNally made several recommendations, including that mother secure services with a physician experienced in sleep disorder and follow recommendations about behavioral and medication issues. Mother attended an initial appointment with Dr. Polnitsky but refused to sign a release to allow the department to speak with him. In February 2005, mother told the department that she was not taking her narcolepsy medication because her sleep was being affected, and she needed to be more alert.
Between February 2005 and June 2005, mother was asked repeatedly by DCF whether she was pregnant. She consistently denied that she was pregnant.
In May 2005, mother was referred to Dr. Marie DiTomasso at the Family Intervention Center. Mother was diagnosed with paranoid schizophrenia and posttraumatic stress disorder and a rule out of bipolar disorder. She was prescribed medication but failed to take it.
In June 2005, the department was able to confirm with Dr. Cynthia Ronan that mother was pregnant and due on July 8, 2005. Mother made several statements that raised serious concerns for the safety of the unborn child due to her apparent mental health issues. Her behavior was described as being bizarre. On June 28, 2005, Dr. Ronan reported to the department that mother stated that she did not want this baby.
At the time of Joseph's birth in July 2005, mother was not cooperating with referrals for services made by the department and recommendations for treatment. She was not taking her medication as prescribed. After Joseph was born, the department again tried to engage mother in services, including psychotherapy, medication management and parenting education.
Between July 2005 and October 2005, mother failed to provide DCF with a consistent address and contact information and when she could be available for home visits. At some point, mother started residing with her parents.
In August 2005, mother participated in a psychological evaluation with Dr. Deborah Gruen, Ph.D. Mother had a complex medical history that included frontal lobe tumor, narcolepsy and thyroid deficiency. Mother presented with symptoms (impulsivity, poor judgment, denial) that resulted from a complex interplay of medical, psychological and psychosocial factors. Her symptoms were consistent with features of schizotypal personality. Mother indicated that she planned to marry father. Dr. Gruen recommended that mother needed to manage and treat aggressively her narcolepsy through sleep regulation and medication management. In order to be reunified with her child(ren), mother needed to demonstrate that she could provide an environment with adequate medical, psychological, financial, and housing stability.
In August 2005, mother also participated in a psychiatric evaluation with Dr. David Krulee, M.D. Mother was diagnosed with major depression, personality change due to sequelae of brain tumor removal and narcolepsy. Mother's cognitive deficits were related to the organic brain syndrome from her past brain tumor and the personality change associated with the brain trauma. Dr. Krulee recommended a neuropsychological evaluation.
In January 2006, mother engaged in a neuropsychological evaluation with Dr. Logan Green, Ph.D., who diagnosed mother with attention deficit hyperactivity disorder and personality disorder. Mother's brain dysfunction had an effect on her behavior.
In February 2006, mother was referred for individual counseling and psychotherapy with Dr. Anthony Campagna, who had experience in treating people with mother's multiple diagnoses. DCF offered to pay for the services and provide transportation assistance. Mother declined to participate in the offer of services with Dr. Campagna from February 2006 to September 2006.
From May 2006 to October 2006, mother engaged on her own in individual counseling with Sally Guest, LPC. Mother failed to show for several scheduled appointments. The department had concerns regarding the services provided by Guest given mother's needs.
In July 2006, while mother was pregnant with Daniel, her obstetrical provider expressed concerns about mother's emotional state. Daniel was born at Waterbury Hospital on July 20, 2006, and was immediately placed under a ninety-six-hour hold.
At the time of Daniel's birth in July 2006, mother was not fully cooperating with services and was not demonstrating sufficient progress towards addressing the child protection concerns. The department continued to try to engage mother in services after Daniel was born.
The specific steps issued in August 2006, restricted mother's access to father's home. She was not supposed to be there from 10 p.m. to 8 a.m. There was circumstantial evidence that mother failed to comply. On several occasions, her vehicle was observed at father's home during restricted hours.
In August 2006, the department referred mother to the McCall Foundation PEAS program, which is a parent education and assessment service. The program was unable to set goals with mother related to her own personal functioning due to her inability to recognize the need for goals. Mother was unable to recognize the need for any parenting education. Over the next several months, mother was unable to make any sustained progress. In December 2006, mother was suspended from services due to her failure to maintain regular contact and establish routine appointments. She was discharged from the program in January 2007, for failure to return phone calls and maintain regular contact. In February 2007, mother was re-engaged in services. She was again discharged in November 2007 for failure to maintain regular contact with the program and failure to make progress toward the identified goals.
On September 26, 2006, Dr. Humphrey conducted a court-ordered psychological evaluation of the respondents. Based on mother's significant cognitive deficits, it was recommended that she not care for any of her children independently and not reside with the children to reduce the risk that she would be in the position of caring for them. Father was not to leave the children alone with mother under any circumstances. Dr. Humphrey doubted that therapy with Ms. Guest would be of much benefit given mother's issues. He recommended that the respondents consult together with a psychotherapist experienced in treating patients with a history of neuropsychological deficits.
In October 2006, mother was arrested and charged with assaulting a DCF worker during a visit with Kristina. In July 2007, she was charged with failure to appear.
After Dr. Humphrey's evaluation, the department referred mother for psychotherapy services at Comprehensive Neurological Services. From February 2007 to October 2007, mother was engaged in individual counseling with Dr. Brett Steinberg, Ph.D., from Comprehensive Neurological Services. Mother was inconsistent with her attendance and struggled to make progress toward the treatment goals. In October 2007, she was discharged for failure to attend her scheduled appointments.
During 2005 and 2006, mother expressed to DCF on several occasions that she did not need to see professionals for mental health treatment. She did not believe that she needed to go to parenting education because she had parenting skills.
At Kristina's trial in January 2007, mother testified that if DCF was not in her life, she would not be in therapy. Although mother had been involved with the department since 2002 and had all three children removed from her care, she still failed to recognize her need for mental health treatment.
In January 2007, Dr. Krulee updated his psychiatric evaluation of mother. He modified his diagnosis to include personality disorder not otherwise specified with subtle features of paranoid and passive aggressive types. He noted several hurdles to reunification, including her mental health issues, employment difficulties, continuing conflicts with DCF, and failure to comply with recommended treatment.
Beginning in February 2007, mother participated in individual counseling with Dr. Brett Steinberg. In Dr. Steinberg's opinion, mother exhibited features of schizotypal personality disorder. Mother was inconsistent with her attendance and struggled to make progress. She had limited insight and believed that she was already a good parent and did not need treatment. Dr. Steinberg reported that "[d]ue to chronicity, severity, and pervasiveness of symptoms, treatment expected to be a gradual and long-term process that could [take] as long as several years." Petitioner's Exhibit No. 34, p. 3. In November 2007, Dr. Steinberg terminated psychotherapy with mother based on mother's nonattendance, tardiness and lack of progress towards the treatment goals. Dr. Steinberg did not expect that ongoing treatment would be productive based on mother's continued failure to engage adequately in treatment.
In 2007, the respondents participated in family/couples counseling with Dr. Warren Corson, III. The department paid toward the services. In August 2007, the services were discontinued after the couple's breakup.
In September 2008, mother started seeing Rachel Sampson for individual counseling.
From October 2008 to June 2010, the department did not make any additional referrals after the TPR judgments. During this period, no visits were scheduled.
In July 2011, after the TPR judgments were reversed, mother declined to meet with the department. In September 2011, mother indicated to DCF that she was not currently working with any providers.
When mother had visitation with the children, she attended regularly. However, she struggled with caring for the children during the visits. She was unable to meet their needs and demonstrated a lack of judgment and poor parenting skills. Mother testified that she had continued to request visitation through her attorney and by contacting DCF on several occasions. After she was notified of the Supreme Court decision in June 2011, she contacted DCF and requested visitation.
(3) Father
The father, Joseph W., was born in Torrington, Connecticut on August 31, 1954, and is fifty-seven years old. He grew up in Thomaston, Connecticut, where he graduated from high school in 1974. After graduating from high school, father attended Mattatuck Community College on and off for a few years.
His employment history includes doing factory machine work and construction. He has received Social Security Disability for spinal injuries resulting from an automobile accident in 1988 but is able to work. Prior to December 2006, father was employed as a stock clerk in a local gas station/convenience store. In January 2007, he was terminated after missing work to attend a concert. He was unemployed until August 2008, when he got another job.
He has a criminal record which includes arrests for assault, breach of peace and threatening.
He first met mother in 2001 at the gas station/convenience store where she worked. In 2004, mother became pregnant by father. They separated after the TPR decision was issued in October 2008. Since then, they have not gotten back together as a couple. Father believed that mother was currently seeing someone named "Glen." The respondents talk sometimes by phone about the case.
When the children were removed, the child protection concerns included father's parenting deficits, mental health issues, inability and unwillingness to communicate with the department, inability and unwillingness to engage in recommended reunification services, and failure to benefit from services. Father failed to recognize or appreciate how mother's mental health issues affected her ability to parent the children. He indicated on several occasions that he believed that department's involvement in his life was unfair, abusive, illegal, and violative of his constitutional rights.
During the trial, considerable evidence was presented regarding the departments efforts to address the child protection concerns and to facilitate reunification. Since July 2005, the department has referred father for numerous services to address the issues that led to the removal of his children. These services have included the Family Intervention Center (individual counseling); Charlotte Hungerford Behavioral Health Center (individual counseling); Family Strides Program (parenting program); Family Services of Greater Waterbury (individual counseling); Northwest Center for Families and Mental Health — Parent Aide Services (parenting); McCall Foundation-PEAS (parenting education); and Dr. Warren Corson, III, Ph.D. (individual counseling).
For fifteen months starting in July 2005, father did not speak with the assigned DCF social worker, Kathy Dayner. Dayner had to communicate with father by certified letter. Between July 2005 and July 2006, father was referred for several services to facilitate reunification. He was repeatedly informed of the court-ordered specific steps. After being referred to the Family Intervention Center for individual counseling in October 2005, father refused to complete the necessary paperwork.
In February 2006, Dr. Humphrey conducted a court-ordered psychological evaluation of father. He diagnosed father as having a personality disorder. His personality expression suggested the existence of pervasive attitudes and conduct that were rigid and self-defeating. During the evaluation, father reported that he wanted to marry mother and have a family with her. He denied having any concerns about mother's psychological functioning or her ability to parent and denied that he needed any support or interventions for himself and stated that he would seek parenting support from his family. Dr. Humphrey made several recommendations in his evaluation regarding steps that father needed to take to work toward reunification with the children. Father needed to complete parenting education courses, demonstrate that he had a safe and adequate space for the child in his home, and provide a parenting plan which included times and caretakers. Father would also need to abide by court orders pertaining to the mother's contact with the children. Despite expressing his wish to be reunified with his children, father failed to fully comply with the recommendations. He did not provide a parenting plan until November 2006. In his plan, he identified paternal grandmother and paternal aunt as caretakers and indicated that he would be supervising the children most of the time.
In May 2006, Father was referred for parenting services with the McCall Foundation-PEAS program. Father initially refused to cooperate. He eventually agreed but the implementation of services was delayed until August 2006. Once the program started, father resisted cooperating fully with the program and the goals. He refused to allow access to his home. He failed to maintain regular appointments. In August 2007, the assigned parenting support worker reported that father had made minimal progress. Father continued to express his feelings that he did not have any issues that would require clinical assistance and was resistant to parenting education services. In November 2007, he was discharged from the program for failure to make progress toward the identified goals.
On September 26, 2006, Dr. Humphrey conducted a second court-ordered psychological evaluation of father and mother. Given mother's mental health issues and parenting deficits, it was not recommended that mother care for any of her children independently. He recommended that father not leave the children alone with mother under any circumstances.
In November 2006, father began clinical services with Dr. Warren Corson III, Ph.D. Father was diagnosed with a personality disorder. Dr. Corson recommended that father participate in individual and family therapy. Following the initial sessions, father continued to express his feelings that he did not need the services and did not schedule further appointments for several weeks. In February 2007, father scheduled some appointments on the advice of his attorney. Father continued to express his feelings that he did not need therapy and questioned the scientific validity of psychotherapy. He consistently stated that he felt forced to participate in therapy and doubted its validity as a science. In October 2007, father was discharged for failing to keep his scheduled appointments and lack of progress in meeting his clinical goals. He was reinstated later that month. When he attended the first session after being reinstated, father indicated the following: "He does not feel he needs therapy . . . He does not believe therapy or psychology are legitimate . . . He feels there is nothing wrong with him or that anything is in need of change . . . He requested to be discharged . . ." Petitioner's Exhibit No. 31. After this session, father was discharged for the second time by mutual agreement. Dr. Corson believed that any further therapeutic interventions with father would be fruitless. Although father maintained his desire for reunification, Dr. Corson had doubts based on father's actions and inactions.
In November 2006, the department made a referral for parent aid services with the Northwest Center. At the December 8 2006 home visit, father presented as being distracted and unreceptive. He expressed his annoyance with having to answer questions about parenting while the children were present. He was informed that the program was designed to assist parents with their interaction with their children during visits. The program tried to accommodate father by scheduling one visit with the children and one without. In January 2007, the program informed DCF that father did not believe that he needed any help parenting and as a result had difficulty setting goals and helping to develop a treatment plan. In February 2007, the program was terminated due to the father's resistance to services and lack of progress.
In December 2006, the department made a referral to the Delta-T Group to provide supervised visitation and parenting education services. Although father initially cooperated to some extent, he soon started demonstrating oppositional and passive aggressive behaviors. He was not receptive to suggestions as to how to better meet the children's needs during visits.
In February 2007 and March 2007, mother's vehicle was observed at father's residence during periods when mother was court-ordered not to be there.
On August 3, 2007, father requested separate visitation after separating from mother. Father was angry at mother for pleading no contest at the August 2, 2007 neglect trial. Father told mother and DCF that they were no longer welcome on his property. He later informed DCF that he always planned to separate from mother due to Dr. Humphrey's recommendation.
Before August 3, 2007, the respondents had insisted that they planned to marry and raise their children together. Mother subsequently reported to DCF that she was no longer planning to maintain an intimate relationship with father, and they planned to co-parent the children. In September 2008, father testified that the respondents planned to raise the children together but testified that he would not feel comfortable leaving the children with mother.
Starting in July 2005, father visited the children as often as DCF permitted. During visits with the children, father did not always demonstrate an ability to consistently and timely meet the children's needs. He failed to demonstrate an understanding of their developmental needs and presented as oppositional when asked to address the children's needs. He made progress with regard to addressing the children's needs. However, he was unable to provide proper discipline when necessary. He continuously displayed love and affection for the children.
From October 2008 to June 2010, the department did not make any additional referrals due to the TPR judgments. During this period, no visits were scheduled. In July 2011, after the TPR judgments were reversed, father declined to meet with the department.
(4) Joseph W.
The child, Joseph W., was born in Scranton, Pennsylvania on July 18, 2005, and is six years old. On September 14, 2005, he was placed in his current foster home. He has never lived with the respondents. He has lived in the foster home with older half-sibling, Kristina, and Daniel. Kristina has been adopted by the foster parents. He is closely bonded to his siblings and the other children in the home.
During the period when the respondents had visitation, Joseph appeared to have a bond with the respondents but experienced behavioral problems surrounding visits. These behavioral issues included aggression toward people and animals and smearing feces and urinating throughout the foster home. The department referred a behavioral specialist to work with the foster family. Joseph's behavior improved after visitation was reduced and later cancelled.
He is currently doing well in his placement. The current foster home is the only home environment that he has ever known. He has made significant progress in his behaviors. He is in first grade and is a regular education student. He has no medical issues. He appeared to be strongly bonded with the foster parents. He has not had any visits with the respondents since October 2008, and does not ask for or about the respondents.
(5) Daniel W.
The child, Daniel W., was born at Waterbury Hospital on July 20, 2006, and is five years old. Daniel was placed in the current foster home after being discharged from the hospital. He has never lived with the respondents. He lives with Joseph and his half-sister, Kristina. Daniel is closely bonded with his siblings and the other children in the home.
During the period when the respondents had visitation, Daniel appeared to have a bond with the respondents but experienced problems surrounding visits but not as serious as Joseph's behaviors. His behaviors also improved as visitation was reduced and later cancelled.
Daniel appears to be doing well in his placement. He is comfortable in the foster home. The current foster home is the only home environment that he has ever known. He is in kindergarten. He has some speech issues and receives special services. He has no medical issues. He has not had any visits with the respondents since October 2008, and does not ask for or about the respondents.
(6) Relevant Witness Testimony
The following witness testimony is relevant to the determination of the pending matters.
(a) Cathy S.
Cathy S. and her husband have been the children's foster parents for several years. Joseph was placed in the home when he was a few weeks old. Daniel was placed with them when he was a few days old. After mother's parental rights were terminated as to Kristina, the foster parents adopted her. Kristina has lived in the foster home for approximately nine years. The foster parents would be willing to adopt the boys if they are freed for adoption.
When the respondents had visitation, the children, especially Joseph, had behavioral problems surrounding visits. These problems included aggressiveness, spitting, smearing feces and urinating throughout the house. The problems occurred on a regular basis and became progressively worse in 2007. The foster parents requested help from DCF and a referral was made to Elizabeth Nulty for behavioral services. Nulty worked with the foster parents and children in the home. The behaviors lessened over time as services were put in place and visitation was subsequently reduced and then cancelled in October 2008. The behavioral problems have all but been eliminated.
The children are doing well in the home and at school. They call the foster parents mom and dad. They are aware that Cathy and her husband are not their biological parents. The children have not asked questions about or asked to see the respondents. The children are closely bonded with and get along well with Kristina and the other children in the home.
(b) Elizabeth Nulty
Elizabeth Nulty is a trained behavioral analyst. From 2004 to 2009, she worked for the Institute for Professional Practice. She now works with another company. She began working as a behavioral consultant with DCF in 2004.
In November 2007, DCF referred her to work with the children in the foster home. Joseph especially was having significant behavioral issues including aggressiveness toward people and animals, biting, spitting, smearing feces, urinating in inappropriate places and screaming. The children's behavior was not typical. Nulty started working with the family on a weekly basis. She worked with the foster parents to learn strategies and techniques to address the behaviors. The foster parents cooperated with her services. Nulty did not have any contact with the respondents. After the respondents' visitation ceased in October 2008, the children's behavior improved noticeably, and her services were needed less frequently. She started coming every other week and then once per month. The intensive services ended in July 2009. After July 2009, Nulty provided services on an as needed basis.
Nulty visited the foster home on September 25, 2011. The children behaved appropriately. They played well together without any fighting. The children's behavior improved markedly since November 2007. The children appeared to be thriving in the foster home.
(c) Dr. Stephen Humphrey
Dr. Stephen Humphrey is an expert in clinical psychology, child and family psychology and child development. Starting in 2006, he conducted several evaluations. He has not had any contact with the respondents since October 2008.
Dr. Humphrey testified to a number of concerns regarding the respondents. Mother had serious mental health issues. She was diagnosed with a personality disorder not otherwise specified, which was marked by rigidity and self-defeating behavior. She suffered from a cognitive dysfunction disorder subsequent to her brain tumor removal. She did not appear to appreciate the extent of her mental impairments. Based on mother's failure to make progress toward the treatment goals, there were problems moving forward with reunification or even increasing visitation. Her psychiatric impairments prevented her from adequately parenting a child. Dr. Humphrey recommended that mother should not be around the children very frequently.
At the time of the first evaluation, Dr. Humphrey had concerns regarding reunification with the father. Father was generally uncooperative and failed to fully participate in services. He failed to fully acknowledge or appreciate mother's mental health issues. There were concerns regarding whether father would be willing and able to limit mother's contact with the children. Father needed to demonstrate that he had an understanding and appreciation of mother's issues and the safety concerns. Even though father did not appear to have any intellectual, emotional or physical limitations that prevented reunification, there were serious concerns pertaining to his parenting skills, his failure to recognize mother's limitations and his unwillingness to recognize the child protection issues. He was not amenable to rehabilitation. Father's personality traits, i.e., rigidness, stubbornness and lack of cooperation with services, caused concerns for the children's safety and created difficulties in terms of reunification efforts. At the time of the second evaluation, Dr. Humphrey was not recommending that the children be returned to the father at that time due to the lack of progress towards addressing the child protection concerns.
In terms of the respondents' request for visitation, Dr. Humphrey recommended against visitation with the respondents while a decision regarding permanency was pending. Based on the ages of the children, history of the case and the psychological profiles of the parents, he did not see that there was a benefit to the children in reinstating visitation at this time. Given their ages, the children likely had few memories of the respondents. The potential harm to the children from reinstating visitation included emotional trauma (i.e., anxiety), regression of prior symptoms and developmental problems. He was concerned about the risk of exposing the children to confusing contact without a clear plan for permanency.
Generally, the respondents failed to make sufficient progress in addressing the child protection concerns and cooperating with recommended services. Dr. Humphrey did not recommend returning the children to either of the respondents. The fact that the children were older now did not change his opinions regarding reunification or visitation.
(d) Kathy Dayner
Kathy Dayner testified regarding her work on the case as a DCF social worker. Mother had several mental health diagnoses. During visits, there were concerns regarding mother's ability to care for the children, including feeding them. Dr. Toll referred mother to Family Intervention Center for individual psychotherapy and medication management.
During her time on the case, Dayner received conflicting information about father's residence. The department was unsure whether he was living in Thomaston or Waterbury.
(e) Pam Lucier
Pam Lucier testified regarding her work with the family as a DCF social worker. The primary concerns regarding mother were her mental health issues and her ability to provide a secure and safe environment for the children. Mother admitted to the department that she spent nights at father's home. In October 2006, mother's visitation was suspended after she was arrested. In January 2007, mother's visits were resumed at father's home.
From July 2005 to November 2007, the department was working toward reunification with the father. The primary concerns regarding father were his mental health issues and parenting deficits, including his ability to appropriately address the children's behavioral issues. Father consistently put forward a plan that he was going to assume care of the children. He did not put forward any relative placement resources. He continued to express that he felt forced into participating in individual counseling. He did not believe in psychology.
In December 2006, father's visits were moved from the DCF office to father's residence. The department moved the visits to father's home to facilitate visitation. A DELTA-T parenting aide was added. In April 2007, the visits were increased to twice per week for six hours each. After August 2007, father wanted visits separated. During visits, father was warm and affectionate with the children. In February 2008, father's visits were transferred back to the DCF office after he made what DCF believed were threats against the department.
In December 2007, the department filed the TPR petitions. At that point, the respondents had been unsuccessfully discharged from all services and not made any sustained progress towards addressing the child protection concerns. The children had been in foster care for many months and needed permanency.
(f) Dr. David Krulee
Dr. David Krulee conducted his first evaluation of mother in August 2005. She was diagnosed with depression and personality functioning issues. When he conducted a second evaluation in January 2007, mother's mental status was largely unchanged, but she was no longer depressed or psychotic.
Mother's personality disorder led to an enduring pattern of interpersonal and emotional difficulties. During the evaluations, mother attributed responsibility for her situation to others and viewed herself as a victim. She externalized blame on others. She exhibited passive aggressive behavior. Even though mother had more than one diagnoses, her lack of cooperation made it difficult to address any of her mental health issues. In working with mother, the goal would be to have her take responsibility for her dysfunctional interpersonal behaviors and learn how to improve her interpersonal skills.
(g) Dr. Richard Sadler
In February 2003, Dr. Richard Sadler conducted an evaluation of mother. Mother was diagnosed with schizotypal personality disorder and dysfunctional thought. Mother had a severely defective parent-child relationship. Mother's progress in services was adversely impacted because of her lateness and no shows. In Dr. Sadler's opinion, it was highly unlikely that mother would be able to raise a child.
(h) Michael Harte
Michael Harte worked for Delta-T Group/Kaleidoscope Family Solutions, which was contracted by the department to provide supervised visitation services. He was referred to the case in December 2006. Visits were initially scheduled twice per week for three hours per visit. In Spring 2007, visits were increased to twice per week for six hours each. The visits took place at the father's home. The respondents started out having joint visits, but the visits were later separated. A PEAS worker was also present during visits.
Father had difficulty disciplining the children. He would listen to parenting advice but did not alter his conduct. Mother had issues caring for and disciplining the children. Mother was unable to multitask. She was unable to supervise both children at the same time. She was not able to properly supervise and discipline the children.
(i) Dr. Warren Corson, III
Dr. Warren Corson worked with Community Counseling of Central CT. In November 2006, father was referred to the agency for outpatient psychotherapy. Father was diagnosed with a personality disorder. The recommendation was for individual and family/couples counseling, which Dr. Corson was able to provide.
Between December 2006 and April 2007, father made some progress but continued to express that he was there against his will. He did not trust DCF and thought that psychology was a pseudoscience. In May 2007, the sessions turned negative. Father was discharged for noncompliance in July 2007. He subsequently reengaged in services but was discharged a second time in November 2007 for refusal to attend sessions. The family/couples counseling had a similar progression and ended by the time the respondents separated in August 2007.
In September 2008, Dr. Corson remained concerned that father was a good candidate for a neglect situation due to his behavior and lack of progress. Although father maintained that he wanted reunification, his actions and inactions, including his refusal to engage in services, indicated otherwise.
(j) Rosalie Guest
Rosalie (Sally) Guest provided therapy to mother through Thomaston Counseling for over one year. The department had concerns regarding Guest's ability to provide the appropriate level of counseling given mother's needs. There were also concerns regarding Guest's professionalism and her attention to mother's need for medication management.
(k) Dr. Brett Steinberg
Dr. Brett Steinberg worked as a neuropsychologist with Comprehensive Neuropsychological Services and received a referral for mother in November 2006. Mother was diagnosed with a personality disorder not otherwise specified, which was characterized by odd-thinking, suspiciousness regarding other people's perception of her and reduced interpersonal relatedness.
Mother engaged in psychotherapy with Dr. Steinberg in February 2007. Dr. Steinberg tried to support mother in becoming the most effective parent she could be. They worked on several goals: parental effectiveness, independence and relationship issues. With respect to parental effectiveness, mother made limited progress. She had a low level of insight. Any progress that was made was not sustained. Mother made some preliminary progress in terms of becoming more independent. She made some limited progress in terms of relationship issues.
In October 2007, mother was discharged for nonattendance and lateness. Her lack of compliance had a significant negative impact on her ability to engage in therapy. When mother was discharged, therapy did not appear to be viable because there were multiple behaviors that were interfering with therapy. In addition, mother had not been successful with regard to other services. In Dr. Steinberg's opinion, mother was unable to benefit from any therapeutic intervention because of her inability to substantively engage in the therapeutic process.
(I) Maria Coutant-Skinner
Maria Coutant-Skinner was a parent education coordinator with the McCall Foundation-PEAS program. In March 2006, father was referred to the program. The plan was reunification with father. In the usual case, PEAS is contracted to provide service for a twelve-month period. In this case, when the contract was due to expire, DCF requested that the PEAS program continue to work with father and do anything and everything to make this a successful reunification.
The PEAS program worked with father for approximately seventeen months on parenting and supervision issues. The visits started at the DCF office and later were moved to father's home. Visits also took place in the community. The parenting skill goals included consistent routine during visits, proper feeding and appropriate disciplinary techniques. During PEAS involvement, there was no sustained progress with regard to father improving his disciplinary techniques. The case management goals were financial independence and to make the residence ready for the children. Father made very little progress on the case management side. PEAS offered father transportation assistance/financial aid, which he accepted to fix his car.
The PEAS program stopped providing service to father in November 2007. Overall, he made some progress regarding safety routine but no progress with respect to proper disciplinary techniques. Besides fixing his car, father made no progress regarding the case management goals. He did exhibit love and affection for his children.
The PEAS program began working with mother in September 2006. Mother's visits took place first at DCF and were later moved to father's home. In November 2006, mother was discharged for missing appointments. Mother reengaged with services in February 2007. In August 2007, the respondents started having separate visits. Mother's visits were held in the community.
Mother's parenting goals focused on proper supervision, child safety and appropriate care. Mother had difficulties caring for both children at the same time. She made some progress in terms of feeding and responding to the children's physical needs. She made no progress in terms of supervision and safety. She was not able to sustain any progress with respect to discipline. Mother's case management goals focused on finding her own place, obtaining a job and achieving financial independence. In June 2006, mother was able to obtain a part-time job at McDonalds.
The PEAS program ended services to mother in November 2007. Overall, mother failed to make any sustained progress in addressing the parenting concerns.
(m) Maime W.
Maime W. is the paternal grandmother. Father has lived with her since 2005. They live in a three-family home where the paternal great grandmother also resides. Father contributes financially to the household, helps take care of the paternal great grandmother and helps with the chores.
(n) Paternal Relatives
The paternal aunt, Nancy G. and paternal uncle, Robert W., Sr. testified that they would help father with the children. Since 2005, neither had come forward as a placement resource.
(o) Dr. Logan Green
Dr. Logan Green conducted a neuropsychological evaluation of mother. Mother's diagnosis was attention deficit hyperactivity disorder (ADHD). Dr. Green believed that her attention difficulties were at the heart of her problems.
Mother's frontal lobe damage interfered with her ability to sustain attention. During the evaluation, there were indications that mother was not being straightforward.
Dr. Green recommended that mother undergo a psychiatric evaluation to determine what medication she needs to address her ADHD. There were medications that address both ADHD and narcolepsy. He recommended that mother take her medication and participate in therapy.
III DISCUSSION A Neglect Petition
On July 21, 2005, the department filed a neglect petition for Joseph alleging as jurisdictional facts that: "Mother has a significant and long standing mental health condition that impairs her ability to safely parent her child. Despite the provision of psychiatric services, mother has failed to benefit from said services. Father has no insight or acceptance of [mother]'s psychiatric impairment and the implications they have for this child. By virtue of the child's age, he requires a competent and responsible caregiver."
On July 24, 2006, DCF filed a neglect petition for Daniel alleging the following jurisdictional facts: "Mother has unresolved mental health issues that prohibit her from adequately caring for the child. Despite the provision of psychiatric services, mother has failed to avail herself of or benefit from said services. Father fails to recognize the mother's mental health issues and how they negatively impact her ability to care for the child. Father has not demonstrated an ability to care for the child independent of the mother. By virtue of the child's age, he requires a competent and responsible caregiver."
In closing, the department argued that this is a case of predictive neglect. See In re Michael D., 58 Conn.App. 119, 124-25, 752 A.2d 1135, cert. denied, 254 Conn. 911, 759 A.2d 505 (2000); In re T.K., 105 Conn.App. 502, 505-06, 939 A.2d 9, cert. denied, 286 Conn. 914, 945 A.2d 976 (2008). Both children were removed from the respondents' custody at birth. The children were at risk if in the respondents' care. The respondents have not made sufficient progress in addressing the child protection concerns that led to the removal of the children. The children's attorney supported the department's position.
Mother objected to the neglect petition for the following reasons. Mother claimed that she never physically harmed or neglected the children. The children were both removed at birth. Mother did not intentionally physically harm the children during the visitation. These arguments will be addressed later in the decision.
Father objected to the neglect petition for two reasons. First, father argued that DCF failed to provide reasonable accommodations to mother in that the department failed to supply parenting services to mother. At that time, father was intimately connected to mother, and thus, was adversely affected by the department's failure to recognize mother's issues. Second, father opposed the neglect petition based on the facts. Father claimed that when Joseph was removed, the department had insufficient information to determine if father could parent the child. He did not speak freely with the department based upon the advice of his counsel. He argued that there was no reason not to place the child with him. When Daniel was born, father could have cared for him without mother. In terms of disposition, if the reasons to commit the children are father's failure to recognize and deal with mother's issues, those reasons are no longer valid because the respondents are separated. In father's opinion, the best interests of the children are to be raised by the biological parent if that parent is an adequate parent. A biological parent does not need to be perfect. Rigidness, alone, does not disqualify a biological parent from raising his or her child. These arguments will be addressed later in the decision.
General Statutes § 46b-129(a) provides in relevant part: "the Commissioner of Children and Families . . . having information that a child . . . is neglected . . . may file with the Superior Court that has venue over such matter a verified petition plainly stating such facts as bring the child . . . within the jurisdiction of the court as neglected . . . within the meaning of section 46b-120 . . ." "A neglect petition is sui generis and, unlike a complaint and answer in the usual civil case, does not lead to a judgment for or against the parties named. Neglect proceedings, as do termination of parental rights cases, consist of two phases: adjudication and disposition." In re David L., 54 Conn.App. 185, 191, 733 A.2d 897 (1999). "[l]n neglect proceedings . . . the sole focus is the safety and general well-being of the child." In re Tayler F., 296 Conn. 524, 545, 995 A.2d 611 (2010). "The standard of proof applicable to non-permanent custody proceedings, such as neglect proceedings, is a fair preponderance of the evidence." (Internal quotation marks omitted.) In re Kamari C-L., CT Page 22751 122 Conn.App. 815, 825, 2 A.3d 13, cert. denied, 298 Conn. 927, 5 A.3d 487 (2010).
(1) Neglect Adjudication
"During the adjudicatory phase, the court determines if the child was neglected." In re Kamari C-L., supra, 122 Conn.App. 824-25. "[A]n adjudication of neglect relates to the status of the child and is not necessarily premised on parental fault. A finding that the child is neglected is different from finding who is responsible for the child's condition of neglect. Although [General Statutes] § 46b-129 requires both parents to be named in the petition, the adjudication of neglect is not a judgment that runs against a person or persons so named in the petition; [ i] t is not directed against them as parents, but rather is a finding that the children are neglected . . ." (Citations omitted; emphasis in original; internal quotation marks omitted.) In re T.K., supra, 105 Conn.App. 505-06. See In re Zamora S., 123 Conn.App. 103, 110, 998 A.2d 1279 (2010). "Nothing in § 46b-129 requires that the respondent parent in a neglect proceeding have custody for the court to adjudicate a neglect petition." In re Jessica S., 51 Conn.App. 667, 672, 723 A.2d 356, cert. denied, 251 Conn. 901, 738 A.2d 1090 (1999). "The statutes and rules of practice . . . do not afford a parent in a neglect proceeding the right to require the trial court to adjudge each parent's blameworthiness for a child's neglect." In re David L., supra, 54 Conn.App. 193.
A neglected child is defined as a child who "(A) has been abandoned, (B) is being denied proper care and attention, physically, educationally, emotionally or morally, (C) is being permitted to live under conditions, circumstances or associations injurious to the well-being of the child . . . or (D) has been abused . . ." General Statutes § 46b-120(8). "Section 46b-129(j) governs petitions for adjudication of neglected children and the commitment of their custody and provides that `[u]pon finding and adjudging that any child or youth is uncared-for, neglected or dependent, the court may commit him to the Commissioner of Children and Families . . .'" (Emphasis in original.) In re David L., supra, 54 Conn.App. 191. "In the adjudicatory phase, the judicial authority is limited to evidence of events preceding the filing of the petition or the latest amendment . . ." Practice Book § 35a-7(a).
The caselaw in Connecticut is clear. "An adjudication of neglect may be based on a potential risk of harm and not just actual harm." In re Michael D., supra, 58 Conn.App. 124-25.
Frequently, actual neglect is the basis for a neglect petition. See In re Kamari C-L., supra, 122 Conn.App. 822, n. 8. In such instances, the court may find that the child "had been, and was at risk of being, denied proper care and attention and was permitted to live under conditions that were injurious to his [or her] well-being." Id., 828. Actual neglect may result from harm to the child's well-being or when the child's welfare has been affected. Id., 825. Factors that may weigh in favor of a finding of actual neglect include a respondent's extensive history with the department arising from an inability to care for a child, persistent parenting issues evincing a lack of rehabilitation, a failure to comply consistently with recommended services and a failure to adequately address mental health issues. Id., 827-28.
The doctrine of predictive neglect may also support a neglect adjudication. "The [petitioner], pursuant to [§ 46b-120], need not wait until a child is actually harmed before intervening to protect that child . . . This statute clearly contemplates a situation where harm could occur but has not actually occurred. Our statutes clearly and explicitly recognize the state's authority to act before harm occurs to protect children whose health and welfare may be adversely affected and not just children whose welfare has been affected . . . The doctrine of predictive neglect is grounded in the state's responsibility to avoid harm to the well-being of a child, not to repair it after a tragedy has occurred . . . Thus, [a] finding of neglect is not necessarily predicated on actual harm, but can exist when there is a potential risk of neglect." (Citation omitted; internal quotation marks omitted.) In re Kamari C-L., supra, 122 Conn.App. 825. See In re T.K., supra, 105 Conn.App. 512-13 ("The situation called out for intervention, as the circumstances into which the child was born put her well-being at risk . . . Our child protection laws are designed to prevent injury to the welfare of a child, not to wait until it occurs . . . The doctrine of predictive neglect is grounded in the state's responsibility to avoid harm to the well-being of a child, not to repair it after a tragedy has occurred").
"Our statutes clearly permit an adjudication of neglect based on a potential for harm or abuse to occur in the future. General Statutes § 17a-101(a) provides: `The public policy of this state is: To protect children whose health and welfare may be adversely affected through injury and neglect; to strengthen the family and to make the home safe for children by enhancing the parental capacity for good child care; to provide a temporary or permanent nurturing and safe environment for children when necessary; and for these purposes to require the reporting of suspected child abuse, investigation of such reports by a social agency, and provision of services, where needed, to such child and family' . . . By its terms, § 17a-101(a) connotes a responsibility on the state's behalf to act before the actual occurrence of injury or neglect has taken place . . . Our statutes clearly and explicitly recognize the state's authority to act before harm occurs to protect children whose health and welfare may be adversely affected and not just children whose welfare has been affected." (Emphasis in original.) In re Michael D., supra, 58 Conn.App. 123-24.
In such instances, the court may find that the respondent's behavior created a potential risk of harm or abuse to the child. See In re Kamari C-L., supra, 122 Conn.App. 828-29 ("long history of mental health issues that [have] not been consistently or sufficiently addressed by the respondent," lack of stable housing, substance abuse, pattern of behavior raising parenting concerns and inability to achieve personal rehabilitation); In re Curnijah H., 121 Conn.App. 292, 294, n. 5, 994 A.2d 710 (2010) (respondent had not been younger children's primary caretaker for majority of time and their "`tender ages require[d] that they be cared for by a consistent, sober and stable caregiver'"); In re T.K., supra, 105 Conn.App. 512 ("For almost twenty years, the mother has had obsessive thoughts of harming herself, and the stress and responsibility of the newborn child caused her to obsess about hurting the child. She shared these thoughts with the father, who was so concerned that he told the mother to seek help from the hospital social worker. The record also discloses that the father has had suicidal thoughts himself and that he would benefit from medical treatment. Furthermore, prior to the time they entered marriage counseling, the respondents' marital relationship was strained, resulting in verbal and physical conflict. Both the mother's psychiatrist and the marriage counselor noted that the father's anxious nature had a tendency to exacerbate the mother's obsessive thoughts. Although the department approached the maternal grandparents to be a resource for the respondents, the maternal grandparents minimized the situation"); and In re Michael D., supra, 58 Conn.App. 124-25 ("Here, the petitions alleged that the respondent father had a history of sexual abuse of a minor who was living with him. The petitions also allege that he currently resides with the respondent mother and their children and that the mother had knowledge of such abuse in the past and did nothing to remedy the situation . . . [T]he petitions sufficiently alleged at least a potential for sexual abuse to occur in the near future. An adjudication of neglect may be based on a potential risk of harm and not just actual harm").
(2) Neglect Disposition
"The second phase of a neglect proceeding is the dispositional phase. Section 46b-129(j) provides in relevant part that `[u]pon finding and adjudging that any child or youth is uncared-for, neglected or dependent, the court may commit such child or youth to the Commissioner of Children and Families . . .' `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.' . . . In re Brianna C., [ 98 Conn.App. 797, 804, 912 A.2d 505 (2006)]." In re Kamari C-L., supra, 122 Conn.App. 830.
"[W]hile an adjudication of neglect may lead to removal of a child from parental custody pending investigation and resolution of the child's circumstances, removal is only one of a number of possible dispositions after a finding of neglect. Thus, even after a finding of neglect, the child may remain with his or her parents under protective supervision . . . Pursuant to § 46b-129(d), the Superior Court has three possible options from which to chose regarding custody of a child found to be neglected: (1) commit the child to the commissioner of children and families; (2) vest guardianship of the child in a third party until the child reaches the age of eighteen; or (3) permit the natural parent or guardian to retain custody and guardianship of the child with or without protective supervision." (Citation omitted; internal quotation marks omitted.) In re David L., supra, 54 Conn.App. 192, n. 7.
In determining which disposition is in the best interest of the child, the court may weigh a number of interests. In re Kamari C-L., supra, 122 Conn.App. 829, n. 14. Factors that may be considered include failure to address sufficiently mental health or substance abuse issues. Id., 831. Even if the respondent may have made a positive step to address the parenting issues, i.e. stable housing, this progress may be insufficient to overcome the concerns regarding the child's well-being and the mother's ability to care for the child based on her persistent failure to engage in treatment for her substance abuse and mental health issues. Id., 831.
During the dispositional phase of the proceeding, "[t]he judicial authority may admit into evidence any testimony relevant and material to the issue of the disposition, including events occurring through the close of the evidentiary hearing . . ." Practice Book § 35a-9.
(3) Analysis
In October 2002, the department became involved with mother when Kristina was born. Mother's mental health issues and her parenting deficits put the child's well-being and safety at risk.
From 2002 to 2005, the department worked with mother to address the child protection concerns. The department referred mother for appropriate evaluations and services to address her issues. In December 2002, Dr. Badillo-Martinez recommended individual counseling, but mother failed to engage in counseling until April 2004. In February 2003 and September 2003, Dr. Sadler had serious concerns regarding mother's parenting ability and prognosis. Mother engaged in counseling with Dr. Toll from April 2004 to April 2005. Dr. Toll reported that mother had significant comprehension issues and needed to be on medication. In August 2004, mother participated in a sleep study, which confirmed her diagnosis of narcolepsy. Mother was prescribed medication but refused to take it as prescribed. In May 2005, mother was referred to Dr. Marie DiTomasso at the Family Intervention Center. She was prescribed medication to address her mental health issues but refused to comply.
In late 2004, mother became pregnant by father. Over the next several months, she was asked repeatedly by DCF whether she was pregnant but denied it. In June 2005, mother's behavior and statements raised concerns regarding the safety of her unborn child. Before the child was born, mother and father left the state to avoid having the child removed. They left without having any real plan for housing and employment.
When Joseph was born in July 2005, mother's mental health issues and her parenting deficits put Joseph's well-being and safety at risk. Despite numerous referrals for evaluation and services, mother had not made any real progress in addressing the child protection concerns. Father lacked insight into mother's mental health issues and the implications for the child's safety and well-being.
The evidence demonstrated that in July 2005, Joseph's well-being and safety were placed at risk by the respondents. Despite the department's appropriate efforts since 2002, mother failed to make any real progress in addressing her mental health issues and parenting deficits. She failed to comply with referrals for services made by the department, including individual counseling and medication management. Father lacked an awareness and understanding of mother's issues and also demonstrated a disregard for the child's safety and well-being by leaving the state. The child was at risk of harm in the respondents' care.
Between July 2005 and July 2006, the department worked with the respondents to address the child protection concerns. The respondents were provided with numerous services to address the child protection concerns.
In 2005 and 2006, mother underwent additional evaluations with Dr. Gruen, Dr. Krulee and Dr. Green. Mother was referred for recommended services but failed to fully comply. In November 2005, she was discharged from the Family Intervention Center for non-attendance and failure to comply with the recommendations regarding individual counseling and medication management. In February 2006, mother was referred for individual counseling and psychotherapy with Dr. Campagna but declined to participate in services. Although mother did engage in counseling with Sally Guest starting in May 2006, there were significant concerns regarding Guest's ability to provide appropriate services to address mother's needs. In July 2006, mother obstetrical provider had serious concerns regarding mother's emotional state. During this period, she participated in supervised visitation but demonstrated an inability to properly care for the child.
Between July 2005 and July 2006, the department referred father for several reunification services. The process was not made any easier by the father's refusal to communicate directly with the assigned social worker. He would not speak to the social worker for the first fifteen months of his involvement with the department. Although the father was referred to appropriate services, he failed to fully cooperate. In October 2005, he was referred to the Family Intervention Center but refused to complete the required paperwork. In 2006, he was referred for parenting services with the McCall Foundation, PEAS program. Initially, he refused to cooperate. Although he eventually agreed to participate, the implementation of services was delayed for several months. Father also underwent a court-ordered psychological evaluation with Dr. Humphrey in February 2006. Dr. Humphrey reported that father expressed wanting to marry mother and have a family with her. Father denied that mother's mental health issues affected her ability to parent. Dr. Humphrey recommended that father complete parenting education, demonstrate the ability to provide a safe and secure home for the child, provide a parenting plan, and abide by the court orders regarding restrictions on mother's access to his home. Between February 2006 and July 2006, father failed to fully comply with the recommendations and specific steps. During this period, father participated in supervised visitation. He was able to properly care for the child with some assistance and demonstrated love and affection.
The evidence demonstrated that in July 2006, Daniel's well-being and safety were placed at risk by the respondents. Joseph's well-being and safety also continued to be at risk if in the respondents' care. The respondents were not fully complying with the court-ordered specific steps and recommended services. Mother had not demonstrated any real progress towards addressing the child protection concerns. Her mental state and behavior raised serious concerns. Each evaluator recommended that mother engage in services, including mental health services, medication management, in-home parenting services and parenting education. Mother failed to fully cooperate with services recommended. Father was not in full compliance with the specific steps and recommendations. His refusal to cooperate and resistance to services either prevented or delayed the implementation of necessary and reasonable reunification efforts.
After Daniel was born, the department continued to work with the respondents. The focus was on reunification with father. In September 2006, Dr. Humphrey conducted a second evaluation and made recommendations.
The PEAS program continued to provide parent education services. Mother failed to fully cooperate in services and was suspended from services in December 2006. She was re-engaged in services in February 2007. Father was not fully cooperative and failed to make sufficient progress. The PEAS program was terminated in November 2007.
From February 2007 to October 2007, mother was referred for individual counseling with Dr. Steinberg. Mother failed to cooperate and was discharged in October 2007. During 2005 and 2006, mother expressed several times to the department that she did not need mental health treatment or parenting education.
In November 2006, the department referred father for individual counseling and couples counseling with Dr. Corson. While father was participating in services, he continuously expressed his view that he did not need services and questioned the validity of psychology. He felt he was being forced into participating in services and doubted the value of the services. Father was discharged from services with Dr. Corson for non-attendance and lack of progress in October 2007. In November 2006, the department made a referral to the Northwest Center for parent aide services. Father failed to fully cooperate with the service. The program was terminated in February 2007, due to father's resistance to services and lack of progress. In December 2006, the department made a referral to the Delta-T Group to provide supervised visitation and parenting education services. Initially, father was cooperative but soon demonstrated a lack of cooperation. In August 2007, the respondents separated and visitation was no longer together. The respondents continued to have supervised visitation until the TPR decision was filed in October 2008. Referrals for services were ended as well.
Overall, mother has continued to question the department's involvement and the need for reunification services as she does not believe that she has any mental health issues or parenting deficits. Her beliefs have presented a significant barrier to reunification. Mother has failed to comply with the specific steps and make progress toward the reunification goals. She struggled with caring for her children during visitation and demonstrated poor judgment and understanding regarding their needs. She had difficulties with the most basic childcare including feeding and diaper changing. She lacked insight into how her behavior had ramifications with respect to her ability to care for her children. She failed to cooperate with medication management. Mother has failed to make any significant progress toward reunification with the children. Mother has significant cognitive deficits that would affect any child in her care. She does not have a coherent understanding of her medical and mental health issues. Mother has a history of mental health and substance abuse issues, parenting issues, dependent housing, and unstable adult relationships. She has not cooperated with the department. She has not benefited from recommended services. She has not made any real progress toward addressing the identified child protection concerns. She has not demonstrated an ability to provide a safe and nurturing living environment for the children.
Mother's argument that she never physically harmed or neglected the children is to no avail, as this case is based on predicative neglect, not just actual harm. The department has been involved with mother since October 2002, and she has failed to make any real progress in addressing her mental health concerns and parenting deficits. The children's health, safety and well-being were and would be at great risk in the mother's care.
Father testified that he complied with the specific steps. According to father, he kept all his appointments with DCF, went to the ACRs, kept his whereabouts known to DCF, did not use illegal drugs or alcohol, maintained stable housing and signed releases. He attended individual counseling with Dr. Corson. He visited the children as often as permitted. After Dr. Corson, father engaged in therapy with Dr. Rachel Sampson. Contrary to the father's position, not only did he fail to fully comply with the specific steps, but he also made no real progress in addressing the child protection concerns and putting himself in the position to be reunified with the children. As Dr. Corson noted, although father maintained his desire for reunification, his actions and inactions raised doubts about his true intentions. From the beginning, father resisted the department's efforts to address the child protection concerns related to the family. Father expressed his view that the department's involvement was unconstitutional, unfair and unwarranted. Although he underwent psychological evaluations and was diagnosed with mental health problems, he refused to accept the need for and value of mental health treatment. He lacked an understanding and appreciation of how mother's mental health issues raised serious concerns. His resistance to services has proved to be an insurmountable barrier to reunification. He has not demonstrated an ability to provide a safe and nurturing living environment for the children. Father failed to demonstrate that he could raise the children independently and cooperate with the court guidelines.
Father argued that DCF failed to provide reasonable accommodations to mother. However, the evidence demonstrated that since 2002, the department recognized the complexity of mother's issues and made reasonable efforts to provide referrals for evaluations and for services to address her issues. Father also argued that the facts do not support a neglect adjudication. Contrary to the father's position, the evidence clearly demonstrated that this case falls under the doctrine of predictive neglect, and the children's health, safety and well-being were and would be at risk in the father's care.
Like the cases of In re Kamari C-L., In re Curnijah H., In re T.K., and In re Michael D., this is a situation that called out for intervention by the department to protect the children from harm to their health and welfare. When the neglect petitions were filed, the children were and would be at risk of harm in the respondents' care. They have been in foster care their entire lives.
Based on the evidence presented, the court finds by a fair preponderance of the evidence that Joseph and Daniel were neglected. Therefore, the neglect petitions are granted, and the children are adjudicated neglected.
Having found that the department has proved the adjudicatory grounds, the court must next determine whether the department has met its burden of proof as to disposition.
As previously noted, "[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." (Citation omitted; internal quotation marks omitted.) In re Kamari C-L., supra, 122 Conn.App. 830. "[T]he determination of a child's best interest is generally a fact intensive inquiry . . . [T]he best interest standard . . . is inherently flexible and fact specific and gives the court discretion to consider all of the different and individualized factors that might affect a specific child's best interest." (Citation omitted; internal quotation marks omitted.) In re Shanaira C., 297 Conn. 737, 759-60, 1 A.3d 5 (2010).
In this case, the court has identified and considered numerous factors that are relevant to the determination of the best interests of the children. These factors include the following: children's age; children's behavior surrounding visits; children's bond/attachment to biological parents; children's bond/attachment to foster parents; children's emotional well-being and needs; children's interests in sustained growth, development, well-being and continuity and stability of their environment; children's lack of visibility in the community; children's length of stay in foster care; children's need for long-term care; children's need for supportive, safe, structured, stable, and nurturing caretakers; children's need to be raised in a safe, predictable, caring and nurturing home; children's relationship with biological siblings; children's relationship with foster family and their need for continuity and connectedness; children's removal and placement history; children's safety; expert testimony; family functioning; family integrity; foster care concerns; foster care history; foster parent's willingness to provide long-term care and/or adopt the children; genetic bond to the parents; historical perspective of parent's child caring and parenting; home environment; immediacy of risk to children; lack of parenting skills; medication management; mental health issues, unaddressed or unresolved; parent's ability to be a full-time unsupervised caretaker given her mental health issues; parent's ability to benefit from services provided; parent's ability to parent cooperatively; parent's ability to be primary caretaker; parent's ability to provide adequate supervision; parent's ability to provide even minimally adequate care for the children; parent's ability and willingness to make sufficient efforts to reunify; parent's ability (past, present and future) to provide for the children's need to be raised in a safe, predictable, caring and nurturing home; parent's ability to provide long-term care; parent's ability and willingness to resume a position as a responsible and stable parent in order for reunification to occur; parent's ability to set appropriate boundaries; parent's children protection history; parent's mental health issues which affect safe parenting; parent's compliance with the court orders (specific steps); parent's constitutional right to raise children; parent's contact with children — quantity and quality; parent's cooperation with court ordered evaluation(s); parent's cooperation with service providers; parent's demonstrated ability to raise other children; parent's efforts toward reunification; parent's employment history; parent's expression of the desire to participate in service but has either shown difficulty following through or has not been discharged successfully; parent's failure to make changes in his/her life to accommodate the needs, care and nurturing of the children; parent's failure to recognize unaddressed mental health issues as barriers to reunification; parent's failure to take advantage of services offered by the department to assist the parent in securing the return of his/her children(ren) and rehabilitating himself/herself as a parent; parent's history of mental health treatment needs which he/she has failed to follow through with or address; parent's housing status; parent's inability to understand the children's needs; parent's lack of necessary support system for basic functioning; parent's lack of parenting, coping and decision-making skills; parent's level of participation with services; parent's love and affection for the children; parent kept whereabouts known to department; parent's medication compliance; parent's mental health issues which adversely affect parenting; parent's prior termination of parental rights; parent's wishes and desires; parent's risk of flight (from state/DCF) should children be returned; parent's visitation history; permanency; predictive neglect; reasonable efforts made by the department toward reunification; and risk factors for reunification.
Joseph is six years old; Daniel is five years old. They remain in their initial placements having been placed together with their older half-sister. The children are closely bonded with their sibling and the foster family. The children have been able to overcome behavioral issues and are thriving in the foster home. The children view the foster parents as their "parents" and look to them for care and affection. The foster parents are the children's caretakers. They have met all of the children's needs and provided a safe and nurturing home environment for the children.
Based on the evidence presented, and for the reasons discussed above, the court finds, by a fair preponderance of the evidence, that it is in the best interests of the children that they be committed to the care and custody of the department. Therefore, Joseph and Daniel are hereby committed until further order of the court to custody of the Commissioner of Children and Families, who shall be guardian of the children.
B Motions to Review Permanency Plan
On February 22, 2008, January 22, 2009, December 31, 2009, October 14, 2010, and September 16, 2011, the department filed motions to review permanency plans of termination of parental rights and adoption. Objections to the plans were filed by the respondents.
DCF argued that the permanency plan of termination of parental rights and adoption should be approved based on the history of the case and Dr. Humphrey's testimony regarding permanency. The children's attorney supported the proposed permanency plans. Mother and father objected to the proposed permanency plans.
General Statutes § 46b-129(k) governs the approval of a permanency plan and provides in pertinent part: "(2) . . . 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." Practice Book § 35a-14(d) provides in relevant part: "At each hearing on a motion for review of permanency plan, the judicial authority shall review the status of the child, the progress being made to implement the permanency plan, determine a timetable for attaining the permanency plan, determine the services to be provided to the parent if the court approves a permanency plan of reunification and the timetable for such services, and determine whether the commissioner of the department of children and families has made reasonable efforts to achieve the permanency plan. The judicial authority shall also determine whether the proposed goal of the permanency plan as set forth in General Statutes § 46b-129(k)(2) is in the best interests of the child or youth by a fair preponderance of the evidence, taking 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."
The evidence demonstrated that the department made reasonable efforts towards reunification. The department actively made appropriate, consistent and timely referrals for a panoply of reunification services, including counseling services, parent education services, psychological evaluations, transportation assistance, supervised visitation, and case management services. In many instances, the referrals were guided by the expertise of court-appointed evaluators.
The respondents were unable or unwilling to benefit from the department's reunification efforts. In 2005 and 2006, the respondents were committed to each other and indicated repeatedly their intention to remain together and raise their children as a family. The respondents were unable to recognize the seriousness of mother's mental health issues. Father was unable to demonstrate that he could regulate mother's presence in the home and contact with the children. The respondents have been historically resistant to reunification efforts made by the department. They have failed to benefit from the numerous reunification services offered. Before the respondents ended their relationship, there was considerable uncertainty about father's willingness or ability to regulate mother's contact and interaction with the children. Even though the respondents are no longer a couple, the child protection concerns remain ever present. Given the history of the case, there are significant concerns about the ability of the respondents, either individually or collectively, to provide a safe and nurturing home environment for the children.
Based upon the evidence presented, as discussed throughout this decision, the court finds by a fair preponderance of the evidence that the proposed permanency plan goals of TPR and adoption are in the best interests of the children and will best serve their needs for permanency. The court finds by a fair preponderance of the evidence that the department has made reasonable efforts to achieve the goal of permanency, and the proposed plans of TPR and adoption are in the best interests of the children. Therefore, the court grants the department's motions to review permanency plans and approves the permanency plans of termination of parental rights and adoption. The objections to the permanency plans are hereby overruled.
C Motion for Visitation
On August 25, 2011, mother filed a motion for visitation to recommence visitation with the mother and children. Mother argued that she continued to request visitation. While the appeal was pending, she was not the cause of the lack of visitation. When the TPR judgment was reversed, she asked for the resumption of visitation. She understands that there needs to be a plan to reintroduce visits. Mother points out that there is a conflict in the testimony regarding how soon the children's behavior improved after visitation ended. The foster mother testified that the behavior issues ended soon after the visitation ended, while Nulty testified that she continued to provide services for almost a year.
On September 26, 2011, father filed a motion for visitation requesting that visits recommence pending the outcome of the TPR petition. Father requested the resumption of visitation. His visits alone with the children went well. He understands that the resumption of visitation needs to proceed slowly. If visits go well, they can be increased in frequency and duration.
DCF objected to the motions for visitation. DCF argued that the children have not seen the respondents for approximately three years. In Dr. Humphrey's opinion, visitation should not reoccur until permanency is decided. Visitation would not be in the children's best interest at this time given the improvement in the children's behavior. The children may be harmed by such visitation. The children's attorney opposed the resumption of visitation with the respondents.
General Statutes § 17a-10a addresses visitation with a child in the care and custody of the department. Section 17a-10a provides in relevant part: "(a) The Commissioner of Children and Families shall ensure that a child placed in the care and custody of the commissioner pursuant to an order of temporary custody or an order of commitment is provided visitation with such child's parents and siblings, unless otherwise ordered by the court. (b) The commissioner shall ensure that such child's visits with his or her parents shall occur as frequently as reasonably possible, based upon consideration of the best interests of the child, including the age and developmental level of the child, and shall be sufficient in number and duration to ensure continuation of the relationship." (Emphasis added.)
The issue of visitation was addressed in In Re Justin F., 116 Conn.App. 83, 109, 976 A.2d 707 (2009). There, the court noted that: "Section 17a-10a enacted in 2003, provides, inter alia, that the commissioner shall ensure that a child placed in the care and custody of the commissioner pursuant to an order of temporary custody or an order of commitment is provided visitation with his or her parents and siblings unless otherwise ordered by the court and that the commissioner shall ensure that such child's visits with his or her parents shall occur as frequently as reasonably possible based on consideration of the best interest of the child, including the age and development level of the child, and shall be sufficient in number and duration to ensure continuation of the relationship. This statute also requires the department to prepare a plan of treatment regarding visitation between a committed child and his or her parents and siblings . . .
"Elsewhere in this statutory scheme, there are provisions entitling parents of a committed child who disagree with any provisions of the department's plan to an administrative hearing within thirty days of such a hearing request. General Statutes § 17a-15(d). Additionally, any parent aggrieved by a decision of a hearing officer is entitled to appeal in accordance with applicable provisions of the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq." In Re Justin F., supra, 116 Conn.App. 109; See also In re Leighton V., Superior Court, New Haven (Oct. 9, 1998, Alander, J.) [ 23 Conn. L. Rptr. 128] (98-CBAR-0750; copy affixed hereto); In re Elana H., Superior Court, Juvenile Matters at Waterbury (Feb. 7, 2001, Dewey, J.) (01-CBAR-0376; copy affixed hereto); and In re Christopher M., Superior Court, Child Protection Session at Middletown (Jan. 4, 2008, R.L. Wilson, J.) [ 44 Conn. L. Rptr. 782] (08-CBAR-0056; copy affixed hereto).
Visitation is also addressed by other child protection statutes. General Statutes § 46b-121(b) provides in relevant part: "In juvenile matters, the Superior Court shall have authority to make and enforce such orders directed to parents. 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." In addition, "[i]t is well established that when the department takes custody of a minor child, the trial court has the authority to issue specific steps to the department to facilitate reunification with the parents. [S]ee . . . General Statutes § 46b-129(b), (d) and (j). The trial court also may augment the specific steps with supplemental orders." (Citations omitted.) In re Leah S., 284 Conn. 685, 696, 935 A.2d 1021 (2007); See also In re Christopher A., Superior Court, Child Protection Session at Middletown (August 20, 2002, Levin, J.) ( 2002 Ct.Sup. 10406) (court orders DCF to resume sibling visits as soon as such visits are not therapeutically contraindicated pursuant to § 46b-121(b)); In re Jacqueline D., Superior Court, Juvenile Matters at Montville (April 15, 1992, Teller, J.) (court retains jurisdiction of case and all further proceedings relating to custody and visitation pursuant to § 46b-121).
When mother had visitation with the children, she struggled with caring for the children during the visits. She was unable to meet their needs and demonstrated a lack of judgment and poor parenting skills. During visits with the children, father did not always demonstrate an ability to consistently and timely meet the children's needs. He failed to demonstrate an understanding of their developmental needs and presented as oppositional when asked to address the children's needs. He was unable to provide proper discipline when necessary.
During the period when the respondents had visitation, the children, especially Joseph, experienced behavioral problems surrounding visits. These behavioral issues were not typical and lasted for a significant period of time. The behaviors improved with the assistance of a behavioral specialist and after visitation was reduced and later cancelled.
The children are doing well in the foster home. They are stable and the behavioral problems have been mostly resolved. The children have not seen the respondents for over three years. They do not ask for or about the respondents. The children recognize the foster parents as their caretakers who have met all their needs since they were infants. Dr. Humphrey expressed concerns regarding potential harm to the children from visitation. Reinstating visitation may cause the children emotional trauma and a reoccurrence of behavior problems.
The court recognizes that the respondents visited the children as often as permitted and demonstrated love and affection. But the decision must ultimately be based on the best interests of the children not the respondents' wishes.
Given the children's age and the history of the case, the children's well-being would be put at risk by reinstating visitation with either of the respondents. There is no evidence that the children would benefit from the reinstatement of visitation.
Based on the evidence presented and for the reasons previously stated, the court finds by a fair preponderance of the evidence that visitation with the respondents is not in the best interests of the children. Therefore, the respondents' motions for visitation are denied.
IV CONCLUSION AND ORDERS CT Page 22767
For the above stated reasons, the court renders judgment and enters the following orders:
The neglect petitions are GRANTED and the children are adjudicated neglected and committed to the Commissioner of Children and Families;
The motions to review permanency plan are GRANTED and reunification findings are made as indicated; and
The motions for visitation are DENIED.