Opinion
Nos. H12-CP02-008702-A, H12-CP02-010890-A, H12-CP02-010891-A
April 18, 2008
MEMORANDUM OF DECISION
This is a termination of parental rights ("TPR") case that was tried at the Child Protection Session on Thursday, March 13, 2008, Friday, March 14, 2008, Monday, March 17, 2008, Tuesday, March 18, 2008, Friday April 4, 2008, and Thursday, April 10, 2008. On each such day, the assistant attorney general and the current Department of Children and Families ("DCF") worker assigned to the family, the mother and her counsel, the father and his counsel, the attorney/guardian ad litem for the children and two interpreters appeared for such trial.
On Thursday, April 10, 2008, the sixth day of trial, after consulting with her attorney, the mother offered her consent to the termination of her parental rights to Kimberly, and after she was canvassed, the court (Graziani, J.) found her consent to such termination to be knowingly and voluntarily made by her with the assistance of competent counsel and with her full understanding. The court accepted such consent. With respect to the mother, DCF's oral motion to amend its petitions to add the ground of consent was granted, and DCF was allowed to withdraw the other grounds set forth in its TPR petition for Kimberly.
Also on Thursday, April 10, 2008, the sixth day of trial, after consulting with his attorney, the father offered his consent to the termination of his parental rights to Kimberly, and after he was canvassed, the court (Graziani, J.) found his consent to such termination to be knowingly and voluntarily made by him with the assistance of competent counsel and with his full understanding. The court accepted such consent. With respect to the father, DCF's oral motion to amend its petitions to add the ground of consent was granted, and DCF was allowed to withdraw the other grounds set forth in its TPR petition for Kimberly.
The trial then continued with respect to Ruben and Carmen and to the question of whether termination of parental rights was in the best interest of Kimberly.
In its TPR petitions related to Ruben and Carmen DCF alleged:
A. DCF had made reasonable efforts to reunify Ruben and Carmen with the mother and the father, or
B. neither the mother nor the father were able or willing to benefit from reunification efforts; and
C. Ruben and Carmen had been found in a prior proceeding to have been neglected or uncared for and the mother and the father had failed to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering Ruben's and Carmen's ages and needs, either of them could assume a responsible position in his or her life.
FACTS
This court finds the following facts by clear and convincing evidence:
1. There is no proceeding in any other court affecting the custody of Kimberly, Ruben or Carmen. (Exhibit 3, 2.)
2. On September 25, 2002, five days after Kimberly's birth, a petition to adjudicate Kimberly neglected was filed by DCF. Id.
3. On December 2, 2002, Kimberly was adjudicated neglected and she was committed to the care, custody and guardianship of DCF. Id.
4. On December 16, 2003, September 30, 2004, and June 25, 2005, the regional court found that the commitment of Kimberly should be maintained until further order of the court. Id.
5. Ruben was born in April 2004, and he remained in his parents' care and custody until on or about June 30, 2006.
6. On September 14, 2005, the parents were referred by DCF to the Capitol Region Education Council ("CREC") for services concerning parenting and other issues such as safety, nutrition and child development. (Exhibit 31, 1.)
7. On December 28, 2005, Kimberly was placed with her parents for the first time since her birth, and she remained in her parents' care until June 21, 2006.
8. Carmen was born in March 2006, and she remained in her parents' care and custody until on or about June 30, 2006.
9. UCONN School of Social Work student and CREC intern Cintron had been referred to the family on March 3, 2006, to help with transition issues that had arisen since Kimberly's placement with the biological parents on December 25, 2005. (Exhibit 31, 4.) Her involvement was scheduled as an eight session intervention for ninety minutes each week. Id. Ms. Cintron initially perceived the mother's resistance to her advice and suggestions. Id., 5. The mother told Ms. Cintron that Kimberly's self-injurious behavior was ". . . just pretending." Id. However, Ms. Cintron witnessed such behavior:
On several occasions I asked the parents about the type of punishment that they applied on the child to correct the inappropriate behavior due to the concerns they constantly shared with me during sessions. The parents stated they would not let her watch her favorite TV shows or play with her toys. However, on the last day of my intervention on April 20, 2006 when I arrived at their home, the child was sitting in a plastic chair next to her mother's bed. The child was being punished for having urinated on her clothing. The mother expressed in frustration when I questioned her about the punishment and she responded "I punished her because this weekend she misbehaved, she fought with her brother, disrespected me and hit me when I brought her to the bathroom after she wet her clothes even when she was told she needed to use the bathroom." Kimberly had an angry facial expression and was consistently playing with her hands. When I observed closer, she was pinching her hands. I asked the mother how long the child had been punished for and she responded "more than one hour to see if she would learn". I told the parents the negative consequences of prolonged punishment, especially in children like Kimberly who have shown patterns of anxiety. They were told of the importance of dialogue and avoiding yelling or screaming. A prolonged punishment will cause Kimberly to increase her misbehavior and torture her body.
CT Page 6636
When I asked the mother to stop the punishment, I recommended her to explain to Kimberly the reasons why she was punished. The mother used a loud tone of voice and told the child, "Go play with [Ms. Cintron], but once again [and she signaled with her finger] . . . "if you do this, I will punish you, understand?" Kimberly nodded yes with her head. My recommendations to Kimberly's mother were to modify her tone of voice; the child is not going to follow commands accordingly because she concentrates in the form and attitude in which the mother portrays the message.
Dr. Nina S. Livingston of SCAN (see paragraph 13 above) testified that extended timeouts are inappropriate for a three-year-old child and could be neglect. She also stated that many older children who self-inflict injury have been abused or neglected when younger.
Ms. Cintron recommended that the mother have a mental health evaluation performed "as soon as possible . . ." Id. She noted:
. . . mother has become very frustrated during my visits and she gets constant headaches, bleeding through her nose and vomiting as she has stated. This could negatively influence the [ ] way in which the mother punishes the child when she exhibits unwanted behavior . . .
Id., 6.
10. On April 13, 2006, the court modified the disposition of commitment to protective supervision effective April 18, 2006, through October 18, 2006. (Exhibit 3, 2.)
11. On June 20, 2006, Kimberly began a pre-school program. (Exhibit 15, 1.)
12. On June 21, 2006, school personnel noted injuries to Kimberly and notified DCF. Id.
13. Nina S. Livingston, a licensed physician in the State of Connecticut employed by The Faculty Practice Plan at Connecticut Children's Medical Center as a pediatrician in the SCAN (suspected child abuse and neglect) program, was asked by DCF to and she did evaluate Kimberly. Id. She testified at the trial.
14. A family history was taken from the parents that included the following:
At the time of [Kimberly's] birth parents were not together and mother was in a relationship marked by domestic violence. Kimberly was placed in foster care at birth. Mother subsequently had two other children who have remained in her care. Kimberly was reunited with mother and father in 12/05 and the family still has an open DCF case. Kimberly lives with mother . . . father . . . 2-year-old sibling Ruben, and 2-month-old sibling Carmen. Neither parent works and father identifies himself as primary caretaker for Kimberly, though mother also cares for her often. There are no other caretakers . . .
Id.
15. The father's explanation of Kimberly's injuries was as follows:
Father states that on Saturday June 17 or Sunday June 18 father witnessed Kimberly trip over the leg of a portable crib and fall on her face on industrial carpet in parents' bedroom. She had brief bleeding from her nose and mouth after the fall. On Sunday 6/18 father noted bruises on both of Kimberly's cheeks and is unsure how they were sustained; since then the bruise on her left cheek has faded away. On Monday 6/19 father saw a bruise on Kimberly's upper arm and asked her what happened. According to father she said `Me did it.' On Monday morning father went to the bathroom with Kimberly and she had no bruising in her genital area. At 1400 on Monday 6/19 father went to the bathroom with her again and noted black and blue marks in her pubic area. He asked her about it and according to father she answered `Me did it.' On the evening of Tuesday 6/20 father noted Kimberly scratching her pubic area, and noted skin and blood on her underpants. He and mother checked her together, washed the area, and applied cream to it.
Father notes that Kimberly pinches herself and pulls her hair frequently. Father also notes that Kimberly is toilet training and wets herself every other day. DCF worker notes that there was a DCF report in 2/06 that Kimberly was being locked in the bathroom as part of toilet training. I was unable to contact mother by telephone.
Id., 2. Dr. Livingston testified that the mother was not present with Kimberly. Dr. Livingston also stated that it was extremely rare for a three-year-old child to inflict injury to herself.
Kimberly's report to Dr. Livingston was different in part from that of the father. Id. She stated that the mother hit her:
When I examined Kimberly on 6/21 when noting the injury to her mons pubis I asked her "what happened here?" and she answered, "mommy hit me." I asked "What did she hit you with?" and she answered, "mano." (hand in Spanish). I asked "Where were you?" and she said "house." I asked "Where in the house?" and she answered, "my room." I asked "Who else was there?" and she answered "Mommy." When noting the injury on her thigh I asked "What happened here?" and she answered "Mommy hit me." Lydia Palanco of DCF was present during the examination and witnessed this conversation.
Id.
Dr. Livingston's assessment was as follows:
Kimberly has significant bruising and abrasions. The abrasions of her nose and mucosal injuries in her mouth could be explained by the fall described by father, and the bruises on her lower legs and back were likely sustained in normal play. The bruises on her left forearm that is two facing crescents could be consistent with the bite of a child.
In contrast, the bruises/abrasions on her face, thigh, abdomen, mons pubis and other bruises on left forearm are unexplained by father and are suspicious for inflicted injury. Though Kimberly has been reported by family to have self-injurious behaviors, it is extremely unlikely that she would inflict all of these injuries on herself. Kimberly reported to me that mother inflicted the injuries on her thigh and mons pubis. This is consistent with the pattern of injury.
Kimberly must be placed in an environment where she will be nurtured and protected from further injury.
Id., 2-3.
Dr. Livingston testified that the father did not state to her that he had sought medical attention for Kimberly's injuries. She also testified that if one child has been injured by a caretaker, there is always concern that another child can suffer injury from the same caretaker.
The mother also did not seek medical treatment for Kimberly.
16. The DCF Investigative Protocol for the June 21, 2006, incident was admitted as a full exhibit. (Exhibit 7.) The DCF investigator testified at the trial. He and DCF social worker Polanco went to the day care center after the telephone call was received by the DCF hotline. Id., 7. They met with Kimberly's teacher, Mrs. Gomez, and the school nurse. Id. The teacher, a mandatory reporter, stated the following to the DCF investigator:
Mrs. Gomez reported that father dropped Kimberly off this morning for her second day of school. She reported that father informed her that at around 1 a.m. in the morning Kimberly was observed scratching her private area. She reported that father did not add any other information to her. Mrs. Gomez reported that a little after father left she observed Kimberly walking funny. She reported that said child said she was not feeling comfortable so she brought her to the bathroom. She reported that she then observed a mark that looked similar to a burn above her vagina. This worker asked Mrs. Gomez if child mentioned how she sustained the mark, she said child said her mother hit her. Mrs. Gomez reported that yesterday for child's first day of school she was playing and displayed no indication of discomfort. She further reported that she did not observe any mark according to her recollection. Mrs. Gomez reported that she consulted with the nurse who observed the same mark.
Id.
17. On June 21, 2006, the father stated the following to the DCF investigator:
He reported that last night he got up to go to the bathroom between 12 a.m. He reported that as he passed Kimberly's room, which had the door open and he observed her sitting up in the bed with her hands down her pants scratching. He said when he went into the room he observed that she scratched herself so hard that she was bleeding. He reports that he followed up with mother who came into the room and observed that child was bleeding. He reports that mother asked her how she got the mark which he described being above her vagina and child replied by stating that she did it. Father reported that mother then cleaned the child and put hydrocortisone and peroxide on the mark. He said when he dropped her off for school this morning he told the teacher that she was scratching herself last night and about the mark.
This worker asked father if at any time he or mother hit their daughter in that area, he said no. This worker asked him if she was close to anything hot in the past week, he said no stating that she is not allowed in the kitchen. This worker asked him if someone else other than he or mother had child in their care in the past week or so, he said no stating that he and mother are the primary caretakers. This worker asked him if Kimberly has ever complained of someone touching her inappropriately on her private areas, he said there was an incident when she was in foster care that there were some allegations made towards one of the people in the home but he denies Kimberly making any disclosures of sexual abuse. This worker asked him when he first became aware of her having the mark above her vagina, he said two days ago. He said on Monday June 19th he was bathing her in the morning and there was nothing there. He said later in the evening that was when he noticed that the area above the vagina was black and blue in color. This worker asked him for a timeline of where the child was after he bathed her. He said he and mother were inside with the children all day. He said he was doing his friends brakes on his car and the children were outside playing. This worker asked him if he observed anything unusual while children were playing or if he remembered Kimberly complaining of being hurt or burned, he said no. Father had no other explanation as to why child had black and blue marks above her vagina on Monday. He then stated child has inflicted injury on herself in the past and reported that it was possible that child did it to herself considering child told her mother that she did it to herself. This worker asked him if there was a time when mother was alone with her on Monday, he said not really.
Id., 8.
18. The father suggested to the investigator that Kimberly's injuries were self-inflicted:
. . . This worker asked father what he thinks occurred, he said he did not think anyone bit her but feels that she did it herself. This worker asked him why he felt this, he said because his daughter told both he and mother that she did . . .
As set forth throughout this memorandum of decision, the father's explanations lack credibility.
19. The mother's statements about the incident to the DCF investigator were similar to those of the father:
. . . She reported that she first observed that child had black and blue marks above her vaginal area yesterday not Monday like father stated. She did not have an explanation as to how and why child had a black and blue mark in this area. Mother reported that early this morning while father was going to the bathroom he observed Kimberly with her hands down her pants and found that she was bleeding. She reported that father got her and she observed that child was scratching herself. Mother stated that when she asked child how it happened child said, she did it. Mother reported that she had the panties child had on and that it had blood and some skin stuck to it. Mother then showed this worker the panties. Mother reported that Kimberly has a pinching habit. She reported that Kimberly has been very anxious since returning to their care and also since she found that she will be beginning school.
Mother reported that she told father to tell the school this morning about what occurred last night and told him to tell the school that they would bring her to the doctor. Mother also reported that she made contact with ROSW Palanco this morning who was not in the office the first half of the day. She reported that she treated the mark with hydrocortisone and peroxide both medications this worker observed. This worker asked mother if she recalled Kimberly being burned, she said no. She further denied her or anyone else hitting child . . .
Id., 9.
20. On June 21, 2006, at 7 p.m., DCF invoked a 96-hour hold on behalf of Kimberly. Id., 10. The DCF investigator set forth the following:
Father was very cooperative and agreed to exit the hospital. He said a brief goodbye to Kimberly and then walked with this worker outside to this worker's car. While this worker was walking with father he said he had no idea as to how child sustained the injury. He said he did not feel that mother inflicted the injury. He said when he brought his daughter to the bathroom his daughter said he did it. Father reported that it took him three years to get his daughter back into his care and that it was now going to take another three years. This worker explained to father that he and mother needed to review their explanations that they were providing. This worker further informed him that the case was going to be reviewed with the legal team in regards to the other children in the home. This worker informed him that it is a possibility that the other two could be removed due to being similarly situated. He stated that he understood.
Kimberly was discharged from the hospital. SWS Furmanek had a placement already in place. This worker transported child to the foster home with no issues. Child was very excited to see the foster mother as she was familiar with her in the past. She called foster parents mommy and daddy.
Id.
21. On June 23, 2006, DCF filed neglect petitions for each of the children, and DCF also filed and obtained orders of temporary custody. Between June 23, 2006 and June 30, 2006, DCF tried to locate the mother, the father and the children. The father represented to DCF that the family was in New York, but DCF received reports that the family had been seen in Hartford. DCF also was notified that the parents, through the Hartford Probate Court, were attempting to transfer custody of Ruben and Carmen to a godparent. On June 30, 2006, the parents attended the hearing in the SCJM on the ex parte orders of temporary custody, and on that day Ruben and Carmen were turned over to DCF.
22. On July 10, 2006, the DCF investigator had a conversation with the father. Id., 11. The father stated that DCF claimed that Kimberly was burned. Id. The father stated that Kimberly was not burned. Id. The worker summarized the rest of the conversation with the father as follows:
This worker asked him if he could remember the weekend prior to this worker's involvement if Kimberly or any of the children were around anything hot like a curling iron or something like that, he said no. He said mother has a curling iron but she does not use it. This worker asked to see it. Mother brought the curling iron out of the bedroom. She said she has it in the closet because she does not use it. Father continued to state that Kimberly was the one that inflicted the injury. They both denied hitting her or inflicting the injury.
Father then provided this worker with new explanation as to how the injury above her vagina occurred. He reported that the weekend prior to this worker's involvement he was outside with all of the children. He reported that Kimberly was going in and out of the van. He said his upstairs neighbor observe her fall from the van. He said that was a possibility as to how she sustained the injury. This worker asked him if he saw her fall, he said no. This worker asked him if anyone else observed this, he said no. Father and mother then began to complain to this worker about marks and bruises they have allegedly seen on Ruben and Carmen when they come to visits. They reported that they have attempted to follow-up with ROSW Polanco about the concerns.
The father does not seem to appreciate that this description of what happened to Kimberly meant that he was not properly supervising her, acting to protect her from harm, or removing her from an unsafe environment.
Also, the parents' hyper-vigilant approach to alleged marks and bruises on Ruben and Carmen was a pattern that continued after they were removed and through the trial.
23. On June 21, 2006, Kimberly's injuries were reported to the police. (Exhibit 39, 5.) One of the mother's statements was set forth as follows:
That a Social Worker, identified as ROSA FLORES, arrived and R. FLORES tried to call [the father] but [the mother] answered. That R. FLORES had her cell phone on speaker phone and she asked [the mother] if she knew about how the injury occurred to [Kimberly's] private area. That in Spanish, [the mother] said a bad word and appeared to be talking to [the father] when she said, "You see, I told you she gonna talk in school." That a short while later [Kimberly] was brought to the hospital.
***
That based on the facts and circumstances I would request that a warrant be issued for [the mother] charging her with Assault in the Third degree, 53a-61(a)(1), and Risk of Injury to a Minor, 53-21(a)(1), in violation of Connecticut General Statutes. That an arrest warrant for [the father] is also being applied for.
Id., 8.
24. In an August 9, 2006, progress report from the CREC Preschool Intervention Program, it was noted that the parents were receiving six hours of services weekly, including two hours of PIP center-based services, two hours of PAP home-based services, and two hours of supervised visits, a parent support group and workshops. (Exhibit 31, 8.)
25. In an October 20, 2006, progress report from the CREC Preschool Intervention Program, it was noted that the parents were receiving four hours of services weekly, two hours from PIP and two hours of home visits from a parent aide. Id., 10.
26. In a December 12, 2006, progress report from the CREC Preschool Intervention Program ("PIP"), the program coordinator set forth the following:
The following report is based on observations in the classroom. Like most families in PIP, the goals developed for [the mother] and [the father] are: to attend PIP on a regular basis and participate in all activities and curriculum; to be able to interpret, respond to, and understand his child's physical and emotional needs; to demonstrate the ability to create a nurturing and safe environment for the children in order to reunify the family.
PIP Observations
[The mother's] and [the father's] attendance to the program and other interaction (home visits, etc.) since the last report:
10/23 Attend program. [The mother] and [the father] are upset because Carmen has a scratch on her hand and there is no explanation. I try to calm them both down and explain that it probably happened during transportation, it wasn't a big deal and Carmen was ok (it was not bleeding or severely injured). [The mother] and [the father] also received a copy of my report that I faxed to you. They were upset that I mentioned concerns around nutrition. [The mother] caused a scene and swore in front of children and other families in the program.
***
10/25 Received a phone call from Dr. Goldberg from Social Security concerned about [the mother's] psych evaluation. He explained to me that she appeared psychotic — mumbling, unresponsive, rocking, whining, having hallucinations, hearing voices. I explained that I had not witnessed those behaviors, and possibly she was acting to get her SSI benefits approved . . .
11/13 Attended program . . . [The mother] clipped Ruben's nails, but not Carmen's (she said that Carmen wouldn't sit still). I showed [the mother] how to clip Carmen's nails, but she was uninterested . . .
11/20 Attend program. Things go smoothly. It is still observed that [the mother] interacts much more with Ruben than with Carmen.
***
. . . As you can see attendance is not a concern with this family. Their love for their children is obvious; however, there are other concerns.
Concerns that I have with the family:
Lack of a stable living environment — Neither [the mother] or [the father] work, they have no routine, and have no future plans. The phone call that I received from Dr. Goldberg also caused some concern. I am also concerned with nutrition and child development.
CT Page 6647
Attachment — It is obvious that [the mother] has a lack of attachment with her female children. She shows no concern over Kimberly (never asks about her, even when we mention Kimberly she does not respond), and does not interact with Carmen the way she does with Ruben. [The mother] has extreme favoritism towards Ruben.
Attitude/Temper — On numerous occasions I have witnessed [the father's] lack of self-control. He is extremely manipulative and sneaky. He is very confrontational and can turn a small thing into a very big issue (example — When Carmen's hand was scratched).
This family is working hard to get their children back, but they still need a lot of support. Parts of their issues are that they do not agree with why their children were removed, and will admit no wrong. It is hard to work with a family when they will not accept some of the blame. They have been compliant and have worked with parent educators; however, I am not sure how much of our advice they are taking to heart.
Id., 11-13.
The CREC program coordinator testified that the parents' attitude at times could be summarized as follows: they were the parents; the children were their children; and they could do what they wanted. She observed that the parents felt they were good parents. However, she testified that because the parents were unwilling to admit their role in what happened to Kimberly, CREC could not help them with more direct strategies and coping mechanisms.
In the December 12, 2006, report it was noted that the parents were still receiving four hours of services weekly, two hours from PIP and two hours of home visits from a parent aide. Id., 13.
In the April 10, 2007, progress report from the CREC Preschool Intervention Program, the program coordinator reiterated many of the foregoing observations. Id., 14-15. She also reported that two days before the parents arrests on January 5, 2007, the father "was very angry during the visit and threatened to `sue everyone . . . they are going to get what is coming to them.'" Id., 14. The program coordinator stated that she believed that the father's threats and his claims of misbehavior by others were an attempt to shift blame away from the mother and himself.
The mother made similar threats. See exhibit 41, last page, June 18, 2007, entry.
In the CREC Preschool Intervention Program termination summary, it was stated that the father would continue to participate in the Friday support group. Id., 17. Except for some sessions after the father was released from incarceration, he did not continue to attend such group. The CREC program coordinator testified that as of April 2007, the parents were not ready to leave the CREC programs. Such parents had not achieved the goals that had been established for them.
27. On February 28, 2008, the mother pled guilty to each of the charges against her, risk of injury to Kimberly, assault in the third degree against Kimberly. (Exhibit 39, 4.) As of the last date of the trial she had not been sentenced. The plea agreement/sentence recommendation presented to the court was five years incarceration, execution suspended after one year, five years probation, with a right by the mother to argue for less time to serve. Id.
28. On April 26, 2007, Kimberly, Ruben, and Carmen were adjudicated neglected and were committed to the care, custody and guardianship of DCF. (Exhibit 3, 2.)
29. Also on April 26, 2007, the Superior Court for Juvenile Matters at Hartford (Wollenberg, J.) ordered DCF to file TPR petitions relating to Kimberly, Ruben and Carmen. Id. Judge Wollenberg also ordered that the hearing on the permanency plan of TPR and adoption be consolidated with the TPR trial. Id.
30. On July 10, 2007, DCF filed the TPR petitions.
31. DCF has offered or provided the following services, inter alia, to the mother, or the mother has otherwise obtained such services:
A. Institute of Living;
B. Multicultural Psychological Services;
C. Hartford Behavioral Health Services;
D. Institute for Hispanic Families/Catholic Charities;
B. other mental health services;
F. visitation services;
G. substance abuse assessment and testing services;
H. Capitol Region Education Council services;
I. in home services, including but not limited to parent aide;
J. domestic violence services;
K. parenting classes;
L. case management services;
M. supportive housing services;
N. Section 8 housing;
O. transportation;
P. financial assistance;
Q. Intensive Family Reunification Program; and
R. referral to DSS.
32. DCF has offered or provided the following services, inter alia, to the father, or the father has otherwise obtained such services:
A. substance abuse assessment and testing services;
B. Capital Region Education Council services;
C. in home services, including but not limited to parent aide;
D. parenting classes;
E. case management services;
F. supportive housing services;
G. Section 8 housing;
H. transportation;
I. financial assistance;
J. Intensive Family Reunification Program; and
K. referral to DSS.
33. The testimony of the CREC workers Potyra and Flores demonstrated the breadth and the depth of services provided to the mother and the father. The available services included a parent aide program, other home-based services, education in the home, two-hour home visits, education about routines, parenting issues and techniques, nutrition, appropriate discipline, supervised visitation and housing. Also, as set forth in the TPR social study:
From the onset of this case in 2002, Mother and Father have been offered in home parenting support, parenting classes, mental health services, substance abuse services, housing support and transportation.
(Exhibit 3, 14.) The parents were also offered visitation. Id.
34. On June 23, 2006, DCF filed neglect petitions with respect to and sought orders of temporary custody for each of the children, and the trial court granted such ex parte orders of temporary custody.
35. As of August 9, 2006, Kimberly was refusing to visit with the mother and the father. (Exhibit 6, 8.)
36. Before each of the parents was charged with the offense of risk of injury to a child on January 4, 2007, in the fall of 2006 a court-appointed licensed clinical psychologist evaluated each parent. (Exhibit A.) The mother previously suffered from depression. Id., 11. At the time of the evaluation, such evaluator reported that:
. . . [the mother's] clinical profile reflects a major mood disregulation that is consistent with a major depression. There is little compelling evidence to otherwise suggest that the above would manifest as suicidal ideations or behaviors and she denies such a history. More likely the mood disturbance would present as difficulties in interpersonal relations and maintaining emotional appropriate relationships with others. Concerns have been identified specific to "hearing voices." However, there is no compelling evidence to suggest such findings. Nonetheless, there is an oddity to her thought processes that otherwise raises concerns specific to paranoia and cognitive ruminations, which would explain in part her obsessive thoughts.
Id.
The evaluator prepared a "Parent Stress Index." Id., 13. Areas where the mother was outside the normal range of parenting functioning included competence, isolation and role restrictions. Id. The evaluator provided an explanation of the impact of isolation on the mother:
[The mother] did obtain elevations in the area of "Isolation." In this domain a parent feels that they are under considerable stress. Typically they are isolated from family and peers, as noted above, and view their relationship with their significant other as distant and lacking in support. Under the above conditions, resentment may in fact form with concomitant neglect in child care responsibilities. In addition [the mother's] score suggests that under stress the probability of maltreatment increases.
Id., 12.
The father's explanation to the evaluator of the events leading up to the June 21, 2006 removal of Kimberly were consistent with his explanations to others, where he attempted to shift blame away from himself and the mother:
[The father] was asked to provide some level of insight with regards to why he believed the Department of Children and Families was currently involved, to which he indicated, "It's all because of my family — my sister. She doesn't get along with my girl (a reference to [the mother].). They keep calling DCF on us, but it's all a lie." He notes that there have been some concerns with regards to his daughter having "marks on her." Notwithstanding, according to [the father], "I was watching her playing in the van and I could see that she was bumping around a lot, and I could see that she got hurt in her privates, so when I took her to school I told her teacher about it, but the teacher called DCF." [The father] also indicated that, "My daughter has mental problems. She pulls her hair, she punches herself, she twists herself and pinches herself all over. She needs a lot of help, and when I tell people that she needs help, they send someone to the house to play games with her. But that's all she gets."
He denies any history of his having been physically abusive to his daughter or any concerns with regards to [the mother] exhibiting aggressive behaviors towards the child. Notwithstanding, there have been allegations that [the mother] has presented as "strange and bizarre."
See footnote 3, supra.
Avascular necrosis is generally explained at the MayoClinic.com website as follows:
The father also blamed Kimberly for her injuries:
Significant concerns have been raised regarding bruises sustained by the petitioned child, Kimberly, with inadequate explanations offered by the parents. It is [the father's] observations that the bruises are "self-inflicted" . . .
Id., 18.
On the Parent Stress Index, the father had one score outside the normal range in the category of distractability/hyperactivity. Id., 19.
The evaluator confirmed, through a report from Kimberly's therapist, that Kimberly did not want to be returned to her biological parents:
. . . She reports that initially the child had expressed considerable fears and concerns with regards to being returned to her biological parents and in fact had indicated to the therapist that her mother had burned her in her "private parts." According to [the therapist], "She was extremely strong in not wanting to go home."
Id., 23.
The evaluator's conclusions in part were as follows:
As noted above, [the mother] continues to be emotionally fragile, with significant anxiety and mood disregulation. She is not currently receiving psychotropics at this time. However, it is strongly recommended that she obtain a psychiatric consultation, as medications are likely to have a positive effect upon mood regulation. According to [the mother], she doesn't need "medications at this time."
[The father] obtained cognitive scores indicative of borderline functioning. This in and of itself would not necessarily impair his capacity to navigate social systems. In contrast to [the mother], he is able to engage in money management. However, [the father] is likely to be somewhat concrete in his approach to the world in general.
The [father] reports that he is "disabled" as a result of a medical disability, i.e., "vascular necrosis," diagnosed "two years ago," with difficulties in ambulation secondary to "chronic hip condition." Nonetheless, at no time during the evaluation, which took place over several days, was [the father] observed to have difficulties with gait or ambulation. However, the examiner is not competent to render an opinion regarding the implications of [the father's] "stated disabilities."
[The father] does not exhibit a degree of psychological impairment that would sufficiently impact upon child care responsibilities. Nonetheless, as noted above, his specific relationship with Kimberly is regarded as less than ideal, which [the father] reports is related to her "mental problems."
Avascular necrosis is death of bone tissue due to a lack of blood supply. This can lead to tiny breaks in the bone and the bone's eventual collapse. Avascular necrosis most often affects the head of the thighbone (femur), causing hip pain. But it may affect other bones as well.
Blood supply to the bone can be impaired for a number of reasons, including injuries. Avascular necrosis is also associated with long-term use of steroid medications and excessive alcohol intake. Your doctor might use other terms to describe avascular necrosis, such as osteonecrosis, aseptic necrosis or ischemic bone necrosis.
Avascular necrosis is progressive, meaning it worsens with time. Managing the condition is a lifelong process.
There was no evidence that the father had been involved in either long-term use of steroid medications or excessive alcohol intake.
Neither the mother nor the father told the evaluator the truth about each of their involvement in Kimberly's horrific injuries. At the time of the evaluation neither had yet been arrested for any criminal offenses. Also, the mother had not yet entered her guilty plea to the offenses of risk of injury to or assault in the third degree on Kimberly (as of the end of the trial, the charge against the father had not been resolved). All of the foregoing information would have been helpful to the evaluator in his evaluation of each of the parents.
37. The evaluator testified that the parents seemed to have built a wall to protect them from having to admit the June 19, 2006 incident and an earlier incident where the evaluator believed that the father locked Kimberly in the bathroom for a lengthy period of time. He concluded that the mother and the father demonstrated an absence of insight and that was of concern to him. They chose not to explain how Kimberly was injured. The evaluator stated that if the mother caused the injuries, the father did not seem concerned and he did not protect Kimberly from the mother's attack. Thus, he had concerns about the father being able to protect Ruben and Carmen from future harm by the mother. The evaluator also stated that the mother's diagnoses were problematic if she had to deal with another child with behavioral difficulties. He did not recommend the reunification of any of the children with either parent because at the time of the evaluation neither parent was capable of providing unsupervised care to any of the children.
38. At the time of the evaluation, the evaluator stated that the mother and the father presented as a family unit. There was no intent of separation. The mother was overly dependent on the father, and the father was overly protective of the mother. The mother needed a combination of treatments, including medication, individual counseling, family counseling, insight and other things to address her underlying issues.
39. On January 4, 2007, the father was arrested for the offense of risk of injury to a minor occurring on or about June 19, 2006. (Exhibit 38, 2.) The investigating police officer testified that the father was charged with risk of injury to a minor because of the two-day delay in the provision of medical attention to Kimberly.
40. On January 5, 2007, a protective order was issued by the criminal court prohibiting the father from imposing any restraint on Kimberly; threatening, harassing, stalking, assaulting, molesting, sexually assaulting or attacking Kimberly; entering the family dwelling or wherever Kimberly should reside; having any contact in any manner with Kimberly; and coming within 100 yards of Kimberly. Id., 6. As set forth above, Kimberly had been returned to the care and custody of DCF on June 21, 2006.
41. On March 15, 2007, as a condition of release the father was ordered not to have any contact with Kimberly or any unsupervised contact with other children. Id., 7. On the appearance bond signed by the father on March 15, 2007, a special condition of release was: "No contact with victim or other children — cooperate with DCF." Id., 8.
42. As of February 7, 2008, the father had not provided DCF with a copy of the appearance bond no contact order:
. . . Father has not had any visitation with any of his children since 1/5/07, due to a restraining order banning him from having any contact with his daughter, Kimberly, and Father reporting that he was released from Court with an order not to have contact with any children under the age of 16 years old. The Department has not been able to secure a copy of this order but has requested that Father provide a copy. To date, Father has not done so.
(Exhibit 1, 2.)
43. On January 4, 2007, the mother was arrested for the offenses of risk of injury to a minor (Kimberly) and assault in the third degree against Kimberly occurring on or about June 19, 2006. (Exhibit 39, 2.)
44. On January 5, 2007, a protective order was issued by the criminal court prohibiting the mother from imposing any restraint on Kimberly; threatening, harassing, stalking, assaulting, molesting, sexually assaulting or attacking Kimberly; entering the family dwelling or wherever Kimberly should reside; having any contact in any manner with Kimberly; and coming within 100 yards of Kimberly. Id., 10.
45. On March 15, 2007, as a condition of release the mother was ordered not to have any contact with Kimberly. Id., 11.
46. On January 12, 2008, a fourth full sibling was born. (Exhibit 1, 2.) The parents attempted to evade DCF and perhaps the appearance bond order prohibiting the father from having contact with "other children," but they were unsuccessful:
On 1/12/08, K. was born at Bay State Medical in Springfield, [MA]. Mother and Father admitted to Department of Social Services (DSS) staff in Holyoke, [MA] that they delivered the baby out of state to prevent a removal by Connecticut DCF. DSS took a 72-hour hold on K. on 1/15/08. K. was placed with her siblings in Connecticut after the Department received an OTC on 1/17/08. The ten-day hearing on this case was held on 1/25/08, at which time both parents consented to the OTC. The next court hearing for this case is 3/24/08.
Id.
47. The DCF "running narrative document" offered by the father and admitted as full exhibit EE reflects the father's contact (although generally limited to short periods of time) with Ruben and Carmen. By way of examples, March 2, March 8 and March 16, 2008, entries in the running narrative document are as follows:
SW picked up Carmen and Ruben . . . from their foster home for a two-hour supervised visit with their mother . . . SW transported the children to McDonald's on Prospect Street for their visit. Mother was already waiting at McDonald's when this worker arrived. Maternal aunt . . . accompanied mother to the visit. Father assisted mother in bringing the children inside. Father greeted his children and left after five minutes . . . Father showed up with five minutes left to assist mother in bringing and securing the children in their car seats. The visit went well and without incident.
SW picked up K., Carmen, and Ruben . . . from their foster home for a two-hour supervised visit with their mother . . . SW transported the children to McDonald's on Prospect Street for their visit. Maternal aunt . . . accompanied mother to the visit. Father greeted his children and assisted mother m bringing the children inside McDonald's and left after five minutes . . . Father and mother kissed the children and said goodbye to them. SW transported the children back to their foster home. The visit went well and without incident.
***
SW picked up K., Carmen, and Ruben . . . from their foster home for a two-hour supervised visit with their mother . . . SW transported the children to McDonald's for their visit. Father dropped off mother and his oldest son . . . Father greeted his children outside. He noted that due to the ongoing trial he does not feel comfortable going inside and left . . . Father returned after the visit to pick up mother. The parents kissed their children and said goodbye to them. SW transported the children back to their foster home. The visit went well and without incident.
(Exhibit EE, 15-16.) As indicated above, the father continued to have more lengthy contact with his children from an earlier relationship despite the no contact with children condition of the appearance bond.
However admirable the father's interest in Ruben, Carmen and K. (born in January 2008) and in his older children who were and are under the age of sixteen, by his continuing contact with them the father ostensibly violated the terms of the March 15, 2007 appearance bond.
There was no evidence presented that the father violated the January 5, 2007 protective order that applied to contact with Kimberly, who was the only child identified as a victim. Instead, the father has ostensibly violated the terms of the March 15, 2007, appearance bond wherein the father promised the following:
I also promise to satisfy all the special conditions stated below which were ordered by the court or a bail commissioner as a condition of my release on an Appearance Bond. I also understand IF I FAIL TO SATISFY ANY OF THESE CONDITIONS THE COURT MAY MODIFY OR ADD ADDITIONAL CONDITIONS OR REVOKE MY RELEASE . . .
(Exhibit GG, emphasis in original.)
In his contact with his witness Dr. Freedman and others, the father acknowledged that he was to have no contact with his or other children. The father told Dr. Freedman that he blamed DCF for the continued existence of the no contact order. He said that when he sought his release from pretrial incarceration his understanding was that the no contact restriction could be lifted with the assistance of his case worker, but she was not helpful. As set forth above, however, DCF asked the father to produce a copy of the no contact order for review by DCF but as of early February 2008, he had not done so. Dr. Freedman concluded that the father could have and should have advocated more effectively to have the no contact with children prohibition modified, released or lifted but that he did not do so during the approximately fifteen-month period after January 5, 2007. Dr. Freedman acknowledged that in light of the no contact orders the father should not have parented or had face-to-face contact with any of his children after January 5, 2007. However, the father told Dr. Freedman that the order did not prohibit contact with his older children. This, however, was and is not an accurate representation of the cumulative effect of the three orders concerning lack of contact, as the father acknowledged in other conversations.
The respondent father's attorney, without requesting court permission or approval to do so, provided Dr. Freedman with confidential court and DCF documents in violation of General Statutes secs. 17a-28 and 46b-124. The documents contained information not only about the father, but about the mother, the children and others. Dr. Freedman did not perform a court-ordered evaluation. He was retained by the attorney for the father. He met only with the father, and not with the mother or any of the children. He was not told by the father that the mother had pled guilty to risk of injury to a minor (Kimberly) and to assault in the third degree. Even after the mother's guilty pleas, the father did not admit to Dr. Freedman that the mother caused Kimberly's June 19, 2006 injuries.
In his testimony (no written report was prepared), Dr. Freedman stated that (based on what he had learned from the documents he received and from information at trial) neither Ruben nor Carmen should be returned to either parent.
48. Neither the father nor the mother has rehabilitated to the point where either could currently or at any reasonable future time provide a safe, secure, nurturing, stable, permanent home for Ruben or Carmen.
49. The mother has failed to address her mental health, parenting/child safety and other issues. Until she pled guilty in the criminal court, she had not accepted or admitted her responsibility for Kimberly's injuries, so she was unable to benefit from necessary treatment and services relating to such behavior.
50. The father has not accepted or admitted that the mother inflicted the terrible injuries on Kimberly, and that Kimberly or others did not cause them and were not at fault for them. The father also failed to admit or accept his responsibility for, at a minimum, failing to protect Kimberly and failing promptly to obtain medical treatment for her after the June 19, 2006 injuries to her. He thus was unable to benefit from necessary treatment and services relating to such behavior.
51. Since he is committed to his relationship with the mother, there is the substantial likelihood that if Ruben and Carmen were returned to the parents, the father would not protect them from harm by the mother. The father also failed to address his parenting/discipline and anger issues. The father repeatedly violated the terms of the March 15, 2007 appearance bond.
52. All facts set forth in this memorandum of decision are found by clear and convincing evidence, including but not limited to the facts set forth on pages 32-40, infra.
LAW APPLICABLE TO TERMINATION OF PARENTAL RIGHTS CASES:
The law applicable to this case is generally set forth in In re Marcus S., 2008 Ct.Sup. 3329, No. H12-CP07-012714-B, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Bear, J., February 29, 2008), and in such recent cases as In re Davonta V., 285 Conn. 483 (2008), and In re Joseph L., 105 Conn.App. 515, 939 A.2d 16 (2008).
GENERAL STATUTES § 17A-112(k) FINDINGS: 1. The timeliness, nature and extent of services offered, provided and made available to the parent and each child by an agency to facilitate the reunion of each child with the parent.DCF has offered or provided the following services, inter alia, to the mother, or the mother has otherwise obtained such services:
A. Institute of Living;
B. Multicultural Psychological Services;
C. Hartford Behavioral Health Services'
D. Institute for Hispanic Families/Catholic Charities;
E. other mental health services;
F. visitation services;
G. substance abuse assessment and testing services;
H. Capital Region Education Council services;
I. in home services, including but not limited to parent aide;
J. domestic violence services;
K. parenting classes;
L. case management services;
M. supportive housing services;
N. Section 8 housing;
O. transportation;
P. financial assistance;
Q. Intensive Family Reunification Program; and
R. referral to DSS.
DCF has offered or provided the following services, inter alia, to the father, or the father has otherwise obtained such services:
A. substance abuse assessment and testing services;
B. Capital Region Education Council services;
C. in home services, including but not limited to parent aide;
D. parenting classes;
E. case management services;
F. supportive housing services;
G. Section 8 housing;
H. transportation;
CT Page 6661
I. financial assistance;
J. Intensive Family Reunification Program; and
K. referral to DSS.
The testimony of the CREC workers Potyra and Flores demonstrated the breadth and the depth of services provided to the mother and the father. The available services included a parent aide program, other home-based services, education in the home, weekly two hour home visits, weekly two-hour visits at the CREC PIP offices, education about routines, parenting issues and techniques, nutrition, appropriate discipline, supervised visitation and housing support services. Also, as set forth in the TPR social study:
From the onset of this case in 2002, Mother and Father have been offered in home parenting support, parenting classes, mental health services, substance abuse services, housing support and transportation.
(Exhibit 3, 14.) The parents were also offered visitation. Id.
Each of the children has been offered and has received the following services from or facilitated by DCF, inter alia:
medical and dental services plus an MDE;
reunification services;
supervised visitation;
transportation;
foster care services;
educational services;
counseling services (Kimberly);
reunification (Kimberly); and
administrative and case management services.
All services offered to the mother, the father and to each of the children have been reasonably timely under the circumstances.
2. Whether DCF has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980 as amended.DCF has made reasonable efforts to reunite the mother and each child, and the father and each child. See 1. above, and other discussions and/or delineations of reasonable efforts throughout this memorandum of decision.
3. The terms of an applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order(s).On June 30, 2007, the court ordered preliminary specific steps for the mother and the father. (Exhibits 36 and 37.) On October 30, 2007, the court ordered final specific steps for the mother and the father, "to safely . . . regain the custody . . ." of each such child, including:
keep all appointments set by or with DCF;
keep parents' whereabouts known to DCF;
participate in parenting and family counseling (if and when indicated) and make progress toward identified treatment goals to be a safe and nurturing parent free of physical discipline;
accept and cooperate with in home support services referred by DCF;
submit to random drug testing (father);
cooperate with recommended listed service providers for parenting/individual/family counseling, in-home support services . . .;
cooperate with court-ordered evaluations or testing;
sign releases within thirty days authorizing DCF to communicate with service providers to monitor attendance, cooperation and progress toward identified goals, and for use in further proceedings before the court;
secure or maintain adequate housing and legal income;
no substance abuse;
no involvement/further involvement with the criminal justice system;
immediately advise DCF of any changes in the composition of the household to ensure the change does not compromise the health and safety of the children;
visit the child as often as DCF permits; and
within thirty days . . . notify DCF in writing of the name, address, family relationship and birth date of any persons whom the respondent would like DCF to investigate and consider as a placement resource for the child.
The specific steps also ordered DCF to take action as follows:
1. Take all necessary measures to ensure the child(ren)'s safety and well-being.
2. Provide case management services.
3. Develop periodic treatment/permanency plan and review it with the Respondent.
4. Refer the Respondent to appropriate services (see above) and, as otherwise needed, monitor his/her progress and compliance.
5. Monitor the welfare of the child(ren) and the circumstances surrounding his/her/their care by the Respondent.
6. In a Domestic Violence case, assist in developing, implementing and monitoring an appropriate safety plan.
7. Evaluate home of following person(s) as potential placement for child(ren) [left blank].
CT Page 6672
8. Provide respondent with written, dated notice of all referrals to service providers and retain copies of such notices for the court.
9. Implement reasonable recommendations made by service providers and for evaluators in this matter, or obtain relief from the court.
10. Within thirty (30) days of the receipt of written notice by the respondent, complete the investigation and consideration of any person(s) whom the respondent has properly identified as a placement resource for the child(ren).
Each set of specific steps contained the following parental acknowledgement:
As the above-named respondent I hereby agree to cooperate with the above conditions approved and ordered by the court and recognize that non-compliance with these steps [may] result in modification of the existing order or disposition. I acknowledge that failure to achieve these specific steps will increase the chance that a petition may be filed to terminate my parental rights permanently so that my child may be placed in adoption. I understand that I should contact my lawyer and/or DCF worker if I need help in reaching any of these steps.
(Emphasis in original.)
In general, each parent cooperated with services but in many instances each did not receive lasting benefit from them. For example, despite intensive reunification and transition services, approximately six months after Kimberly was reunified with the parents, the mother attacked her with her hands and with a curling iron. At an earlier time after Kimberly was reunified with them, the father locked Kimberly in a bathroom for hours as a method of toilet training. The mother also applied unreasonable disciplinary or training methods to Kimberly as described by the CREC program coordinator.
Through the time of the trial the parents continued to benefit from the housing that was obtained for them.
At the end of the trial the mother was awaiting sentencing, with the pre-sentence report due on April 21, 2008. (Exhibit 40, 6.) At the end of the trial the father had not entered a plea or been tried on the risk of injury to a minor charge he faces for his failure to obtain prompt medical treatment for Kimberly.
The mother has not been willing to participate in mental health treatment, including a medication regime.
The father has not been employed for a substantial period, and is not receiving disability benefits despite his efforts to obtain them.
The father and the mother did not always cooperate with DCF. (See, e.g., exhibit 41.)
4. The feelings and emotional ties of each child with respect to his or her parents, any guardian of the person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties.Ruben and Carmen have a bond with the mother, and they had enjoyed a good visiting relationship with her through much of the period after she attacked Kimberly. Although the father, in violation of the March 15, 2007 appearance bond, continued to see Ruben and Carmen for short periods of time at the mother's visitation, he has not been allowed to have contact with them since March 15, 2007. Ruben's and Carmen's bond with the father has weakened over this period. After the mother's June 19, 2006 attack, Kimberly eventually refused to visit with either parent and has no bond with them. The January 5, 2007 protective orders barred the parents from contact with Kimberly.
As of the dates of the trial, each child had a strong bond with the members of the pre-adoptive foster family with whom they currently live.
5. The age of each of the children:
Kimberly is five years, seven months old.
Ruben is four years old.
Carmen is two years old.
6. The efforts each parent has made to adjust his or her circumstances, conduct or conditions to make it in the best interests of the children to return home in the foreseeable future.As set forth throughout this memorandum of decision, neither parent has made reasonable or sufficient efforts to adjust his or her circumstances, conduct or conditions to make it in the best interests of the children to return home in the foreseeable future. While the mother has been faithful with visitation with the children when available until February 25, 2008, she was unable or unwilling to admit to DCF or to service providers that she had attacked Kimberly and that she was responsible for her injuries. Thus, even for those services with which the mother cooperated, the providers could not work with the mother to address the real issues that needed to be addressed before any reunification could be possible, and substantial time was lost. After the mother was hospitalized in 2005 and before her June 19, 2006, attack on Kimberly, the mother avoided and/or refused mental health treatment and medication that might have prevented her behavior. By his silence and denials after the attack, the father enabled the mother to avoid treatment and other help. Before the attack, the father, on whom the mother was dependent, did not persuade her to have mental health treatment and to follow a medication regime. After the attack, the mother and the father campaigned against DCF, foster parents and providers to identify minor deficiencies in an effort to shift focus and blame from themselves.
7. The extent to which a parent has been prevented from maintaining a meaningful relationship with the children by the unreasonable act or conduct of the other parent of the children, or the unreasonable act of any other person or by the economic circumstances of the parent.There was no evidence presented that the mother or the father has been prevented from maintaining a relationship with any of the children by any unreasonable act or conduct of any other person.
Although the court had some very general information, some of which has been set forth in this decision, neither the mother nor the father provided specific information concerning her or his current or past economic circumstances.
WITH RESPECT TO THE MOTHER AND THE FATHER OF RUBEN AND CARMEN, DCF HAS PROVED, BY CLEAR AND CONVINCING EVIDENCE, THE GROUND B(i) ALLEGATIONS OF ITS TERMINATION OF PARENTAL RIGHTS PETITION.The court finds that DCF has alleged and proved, by clear and convincing evidence, that
(1) this court has jurisdiction over the matter and the parties;
(2) Ruben and Carmen previously were adjudicated neglected;
(3) prior to filing its termination petition, DCF made reasonable efforts to reunify the mother and the father with Ruben and Carmen through offers of, provision or attempted provision of services to such mother, father and children;
(4) the mother and the father were unable or unwilling to benefit from the offers of, provision and attempted provision of services to the point where either could be reunified with Ruben and Carmen;
(5) because of the events, behavior and issues set forth in this decision,
(i) after Ruben and Carmen were removed from the mother and the father on June 30, 2006, (ii) after the October 30, 2006 neglect adjudication, (iii) prior to the filing of the July 10, 2007 TPR petitions and (iv) thereafter through the last date of the trial, the mother and the father failed to achieve the degree of personal rehabilitation that:
(a) encouraged the belief that prior to the filing of the TPR petition,
(b) would encourage the belief that within a reasonable time after the filing of such petition, or
(c) would encourage the belief within a reasonable time in the future, considering the ages, past and current circumstances and needs of Ruben and Carmen, either parent could assume a position in his or her life as a responsible parent providing an environment that was free of domestic violence, free of physical and emotional abuse or neglect, and that provided for and insured each child's safety and welfare; and thus
(6) the level of rehabilitation the mother and the father have achieved falls short of that which would encourage a belief that at some reasonable future date either can assume a responsible position in each such child's life.
DCF has thus proved, as to the mother and to the father, by clear and convincing evidence, the Ground B(i) allegations of its TPR petitions concerning Ruben and Carmen. The parents knowingly and voluntarily consented to the termination of their parental rights to Kimberly.
WHETHER IT IS IN THE BEST INTEREST OF KIMBERLY, RUBEN AND CARMEN FOR THE MOTHER'S AND THE FATHER'S PARENTAL RIGHTS TO BE TERMINATED
Utilizing the clear and convincing evidence standard, the court has considered the best interest of Kimberly, Ruben and Carmen with respect to whether the mother's and the father's parental rights should be terminated.
For a substantial period of time, Kimberly has not wished to have contact with her parents, see, e.g., exhibit 3, 7-8, and each of the parents has consented to termination of parental rights. It is also substantially more likely than not, although physical abuse rather than sexual abuse is involved in this case, that as a condition of probation the mother and the father will not be allowed to have any contact with Kimberly. See, e.g., State v. Faraday, 268 Conn. 174, 188, 842 A.2d 567 (2004); State v. Ortiz, 83 Conn.App. 142, 165-66, 848 A.2d 1246 (2004); State v. Welwood, 258 Conn. 425, 427-28, 780 A.2d 924 (2001); State v. Jones, 2007 Ct.Sup. 21810, No. CR06-355760-S, Superior Court, Judicial District of Waterbury at Waterbury, G.A. #4 (Markle, J., December 19, 2007); In re Russell B., 2007 Ct.Sup. 19314, No. K09-CP07-011016-A, Superior Court, Judicial District of New London, Juvenile Matters at Waterford (Mack, J., November 14, 2007); In re Sarah A., 2007 Ct.Sup. 8183, No. M08-CP06-010195-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Bear, J., March 14, 2007); In re Luke O., 2005 Ct.Sup. 13350-f, No. T11-CP04-012033-A, Superior Court, Judicial District of Tolland at Rockville (Graziani, J., October 18, 2005); In re Mark W., 2002 Ct.Sup. 9565, Superior Court for Juvenile Matters, Child Protection Session at Middletown (Jongbloed, J., July 31, 2002).
In State v. Faraday, the Supreme Court noted:
The written conditions of probation given to the defendant and signed by him on July 31, 1998, were as follows: "No contact directly [or] indirectly [with] victim or victim's family. Sex offender treatment deemed appropriate by [probation]. No unsupervised contact [with] any child under the age of [sixteen]. The supervisor cannot be someone [that the defendant] is romantically involved with. Exception is the situation [the defendant] is presently in (girlfriend with child) unless [the department] is not satisfied [with] arrangement." (Emphasis in original.)
In State v. Ortiz, the defendant was convicted of the crimes of assault in the first degree, kidnapping in the second degree, threatening, carrying a dangerous weapon and criminal violation of a protective order. A no contact order was entered not only for the protection of the victim, but also for her children:
. . . In light of the information the court had before it at sentencing, the court was warranted in its concern of not just protecting the victim, but also her offspring.
However, the defendant also attacks the breadth of the order, which proscribes all contact with his children. We acknowledge that "[c]hoices about marriage, family life, and the upbringing of children are among associational rights [the United States Supreme Court] has ranked as of basic importance in our society . . . rights sheltered by the Fourteenth Amendment against the State's unwarranted usurpation, disregard, or disrespect." (Citation omitted; internal quotation marks omitted.) M.L.B. v. S.L.J., 519 U.S. 102, 116, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996). A prohibition on contact with one's children affects the defendant's associational rights. Although we hold that the court was warranted in severely restricting the defendant's contact with his children in furtherance of the goal of probation to protect them as members of the public, that restriction should not reach further than is reasonably necessary for the preservation of the children's safety. A strict application of the court's order appears to prohibit the defendant from sending even a birthday card to his children. Yet, it is difficult to imagine how such mail contact could jeopardize theft safety. We conclude that a blanket prohibition of all such contact with the children is violative of the defendant's constitutional rights. We therefore reverse the order only insofar as it prohibits mail contact and remand the case to the court with an instruction to tailor the "no contact" provision to allow the defendant to have at least reasonable mail contact with his children, conditioned in the court's discretion so that it will be conducted in such a manner as the court determines would not endanger their safety.
In State v. Welwood, the defendant pled guilty to two counts of risk of injury to a child, and received a sentence of ten years incarceration, execution suspended, and five years of probation with specific conditions. The conditions of probation included the following:
. . . (1) have no written, oral or physical contact with the minor victims, until they reached the age of twenty-one, unless, after a full hearing, a criminal judge ordered contact for therapeutic purposes only . . . (4) have no written, oral or physical contact with his natural daughter during probation unless she requested contact . . . (7) not reside at the family home, even if the two victims were not present there; (8) have no unsupervised contact with any other minor child under the age of sixteen years; (9) raise the issue of his alleged sexual abuse of his natural daughter during his treatment . . . The trial court noted that any violation of the defendant's treatment contract would be grounds for termination of treatment and referral back to the probation department. In accordance with the last condition of probation, the defendant signed an agreement that provided in relevant part: "1. I will have no contact of any kind, direct or indirect with the two natural children of my current wife . . . who now are twelve years of age and eight years of age, until each of them reaches her twenty-first birthday . . ."
In State v. Jones, the defendant was convicted of sexual assault in the second degree and risk of injury. The court set forth the defendant's conditions of probation, including the following:
. . . psychological evaluation and/or treatment which would include sex offender treatment with CATSO or affiliated agency; no contact with any of the victims; and not to reside in the household with female children under the age of eighteen, no unsupervised contact with minors . . .
In In re Russell B., the defendant was originally charged with two counts of sexual assault in the second degree and risk of injury. He was convicted of one count of illegal sexual contact in violation of General Statutes sec. 53-21(a)(2), and a condition of his ten-year probation was that he have no unsupervised contact with minor children under sixteen years old.
In In re Sarah A., the mother pled guilty, under the Alford doctrine, to the offenses of assault in the second degree, risk of injury to a minor (sexual contact) and sexual assault in the fourth degree. Among the ancillary orders, the mother was ordered not to have direct or indirect contact with Sarah in any manner.
In In re Luke O., the father was
. . . convicted on November 24, 1997 for the crime of risk of injury, and illegal sexual contact to which he was sentenced to five years in jail, 5 years suspended, concurrent with 15 years of probation. The father is attending sex offender treatment and is not permitted unsupervised contact with any minors including his own children.
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The father is unable to be a parenting resource due to his numerous convictions and current conditions of probation which restrict his unsupervised contact with minors, among other reasons.
In In re Mark W., the special conditions of community release/parole included no contact with minors without permission because of a sexual abuse conviction.
In this case, each of the parents was subject to a protective order not to contact Kimberly, and pursuant to the appearance bond the father could not have contact with any minor children.
In the October 2, 2007 social study in support of termination of parental rights, the current social worker reported that Kimberly was doing well in her placement with the pre-adoptive foster parents:
On 5/26/07, Kimberly was placed with her siblings, Ruben and Carmen S. This was a DCF recommended placement after the filing of the permanency plan for Termination of Parental Rights. Kimberly is adjusting very well to this placement. Kimberly reports that she loves being placed with her siblings and has no concerns regarding her caretakers. Kimberly gets along well with her siblings and currently shares a bedroom with Carmen. The caretaker reports that Kimberly is a joy to have in the home. The caretaker and Kimberly demonstrate an obvious bond. Kimberly refers to her caretakers as Mom and Dad.
Kimberly has recently started Kindergarten. Kimberly is doing very well academically and socially in school. Kimberly states that she likes school and her new school environment.
(Exhibit 3, 8.) See also exhibit 1, 2.
In the October 2, 2007 social study in support of termination of parental rights, the current social worker also reported that Ruben was doing well in his placement with the pre-adoptive foster parents. (Exhibit 3, 8.) They reported that he has good hygiene skills and is a very lovable child. Id. The worker reported that Ruben
. . . is clearly bonded to his other siblings, Kimberly and Carmen, who are both placed with the same caretaker.
Id. See also exhibit 1, 2.
The worker also reported that Carmen was doing well in the home:
Carmen is currently walking and talking in short sentences. Carmen was placed in her current foster home on 8/31/06. Carmen is placed with her siblings, Kimberly and Ruben. Carmen is described by her caretaker as the baby of the family. Carmen has a wide eyed smile and always appears to be happy. Carmen is very bonded to her caretaker and her siblings. Carmen shares a room with her sibling, Kimberly. Caretaker has reported no concerns regarding Carmen.
(Exhibit 3, 8-9.) See also exhibit 1, 2.
During the lives of Kimberly, Ruben and Carmen, the mother and the father have not been able to provide the safe, secure, nurturing, stable, violence-free, and permanent environment for each of them required by statute and case law.
As set forth on page 8, supra, neither the father nor the mother sought medical treatment for Kimberly's serious injuries until two days had elapsed and others demanded that Kimberly go to the hospital. Also, she stated that there is always concern that the pattern of abuse can be repeated with another child:
Dr. Livingston testified that the father did not state to her that he had sought medical attention for Kimberly's injuries. She also testified that if one child has been injured by a caretaker, there is always concern that another child can suffer injury from the same caretaker.
The same concern was expressed by Dr. Franklin:
The evaluator testified that the parents seemed to have built a wall to protect them from having to admit the June 19, 2006, incident and an earlier incident where the evaluator believed that the father locked Kimberly in the bathroom for a lengthy period of time. He concluded that the mother and the father demonstrated an absence of insight and that was of concern to him. They chose not to explain how Kimberly was injured. The evaluator stated that if the mother caused the injuries, the father did not seem concerned and he did not protect Kimberly from the mother's attack. Thus, he had concerns about the father being able to protect Ruben and Carmen from future harm by the mother. The evaluator also stated that the mother's diagnoses were problematic if she had to deal with another child with behavioral difficulties. He did not recommend the reunification of any of the children with either parent because at the time of the evaluation neither parent was capable of providing unsupervised care to any of the children.
Page 25, supra, paragraph 37.
Until February 25, 2008, the mother denied that she attacked and seriously injured Kimberly on June 19, 2006. The father supported the mother's denials even after the mother pled guilty. The mother was overheard saying to the father in Spanish after she was asked by a CREC worker if she knew how the serious injury to Kimberly occurred:
"You see, I told you she gonna talk in school."
The evaluator also noted the following:
At the time of the evaluation, the evaluator stated that the mother and the father presented as a family unit. There was no intent of separation. The mother was overly dependent on the father, and the father was overly protective of the mother . . .
Page 25, supra, paragraph 38. The same circumstances existed at the time of the trial.
The court finds, by clear and convincing evidence, that it is in the best interest of Kimberly, Ruben and Carmen and that it is necessary for each of their growth, development, safety, security, stability, and permanency, that the parental rights of the mother and the father be terminated.
CONCLUSION AND ORDERS:
Having considered the evidence and the statutory, Practice Book and case law requirements, the court finds, by clear and convincing evidence as to the mother and the father of Kimberly, Ruben and Carmen:
(a) DCF has proved, by clear and convincing evidence, Ground B, failure to rehabilitate relating to Ruben and Carmen;
(b) Each parent has knowingly and voluntarily consented to the termination of their parental rights to Kimberly;
(c) it is in the best interest of Kimberly, Ruben and Carmen to terminate the parental rights of the mother and the father.
Accordingly, it is hereby ORDERED that the parental rights of the mother and the father are hereby terminated.
Judgment shall enter accordingly.