Opinion
No. L15-CP02-007724-A
January 17, 2007.
MEMORANDUM OF DECISION
This is a termination of parental rights ("TPR") case. The grounds alleged by the commissioner of the department of children and family services ("DCF"), the petitioner herein, in the April 11, 2005, TPR petition it filed against each respondent parent are Ground B(i), failure to rehabilitate.
Commencing on January 8, 2007, the TPR trial took place. The mother appeared and attended each day of the trial. The biological father, who previously had consented to the termination of his parental rights, did not appear for trial.
The undisputed chronology of relevant events in this case is as follows:
1. On October 22, 2002, pursuant to what are now Connecticut General Statutes ("C.G.S.") § 17a-101g(e) and (f), DCF invoked a "ninety-six hour hold" on Kristina H. ("Kristina"), who was in a hospital because she had a premature birth.
". . . (e) If the Commissioner of Children and Families, or the commissioner's designee, has probable cause to believe that the child or any other child in the household is in imminent risk of physical harm from the child's surroundings and that immediate removal from such surroundings is necessary to ensure the child's safety, the commissioner, or the commissioner's designee, shall authorize any employee of the department or any law enforcement officer to remove the child and any other child similarly situated from such surroundings without the consent of the child's parent or guardian. The commissioner shall record in writing the reasons for such removal and include such record with the report of the investigation conducted under subsection (b) of this section.
"(f) The removal of a child pursuant to subsection (e) of this section shall not exceed ninety-six hours. During the period of such removal, the commissioner, or the commissioner's designee, shall provide the child with all necessary care, including medical care, which may include an examination by a physician or mental health professional with or without the consent of the child's parents, guardian or other person responsible for the childcare, provided reasonable attempts have been made to obtain consent of the child's parents or guardian or other person responsible for the care of such child. During the course of a medical examination, a physician may perform diagnostic tests and procedures necessary for the detection of child abuse or neglect. If the child is not returned home within such ninety-six-hour period, with or without protective services, the department shall proceed in accordance with section 46b-129."
2. On October 25, 2002, (i) upon its finding that Kristina was in immediate physical danger and that placement in the mother's home was contrary to her welfare, the court (Turner, J.) issued an ex parte order of temporary custody ("OTC") that placed DCF in custody of Kristina, (ii) DCF filed a petition seeking an adjudication that Kristina was neglected, and (iii) the court ordered specific steps for the father.
C.G.S. § 46b-129(b) provides in part that "[i]f it appears . . . that there is reasonable cause to believe that (1) the child . . . is in immediate physical danger from the child's . . . surroundings, and (2) that as a result of said conditions, the child's . . . safety is endangered and immediate removal of such surroundings is necessary to ensure the child's . . . safety, the court shall . . . (B) issue an order ex parte vesting in some suitable agency or person the child's . . . temporary care or custody . . ."
Sections 17a-101g and 46b-129 contain different language establishing a basis for a ninety-six-hour hold and the issuance of ex parte order of temporary custody. The Supreme Court has determined that the differing language reflects "a distinction without a difference." Teresa T. v. Ragaglia, 272 Conn. 734, 749 n. 9, 865 A.2d 428 (2005):
"The reasonable cause determination in § 46b-129(b) requires a finding that the child is `suffering from serious physical illness or serious physical injury or is in immediate physical danger,' whereas the probable cause determination in § 17a-101g(c) requires a finding that the child is `in imminent risk of physical harm.' The word `imminent' is defined as `[n]ear at hand,' `impending' and `on the point of happening . . . Something which is threatening to happen at once, something close at hand, something to happen upon the instant . . .' Black's Law Dictionary, supra. The word `immediate' is defined as `[p]resent; at once; without delay . . . [T]he word . . . denotes that action is or must be taken either instantly or without any considerable loss of time.' Id. In our view, this is a distinction without a difference . . .
"Furthermore, if the legislature had intended to distinguish between § 46b-129(b) and § 17a-101g(c) on the basis of the urgency of the threat to the child, it presumably would have used different language in each of those statutes to describe the necessity for removal. Instead, both statutes use identical language in providing that, as part of the probable cause determination, it must be found that `immediate removal . . . is necessary to ensure the child's safety . . .' General Statutes §§ 17a-101g(c) and 46b-129(b)."
3. On November 8, 2002, after a contested hearing, the OTC was sustained, and the court ordered specific steps for the mother.
4. On April 10, 2003, DCF filed a motion to consolidate the trial on the pending neglect petition with the hearing on the mother's motion to vacate the OTC, and the court granted such motion.
5. On May 6, 2003, the neglect trial and the hearing of the mother's motion to vacate the OTC commenced. The "fully contested" trial and hearing continued on various days over a period of several months through March 2004.
6. On March 15, 2004, the court adjudicated Kristina neglected because she was denied proper care and attention, physically, mentally, emotionally or morally. Kristina was committed to the care, custody and guardianship of DCF. Although the court filed a written decision, which written decision was mentioned during the TPR trial, no party offered such decision as evidence or asked the court to take judicial notice of such decision.
7. On April 11, 2005, DCF filed a termination of parental rights petition concerning Kristina in which it alleged, inter alia, that:
(A) it had made reasonable efforts
(i) to reunify such child with his and her biological mother, and
(ii) that the biological mother and father were unable or unwilling to benefit from such reunification efforts; and
(B) that Kristina had been found in a prior proceeding to be neglected and that the mother and the father had failed to rehabilitate ("Ground B(i)"). 8. In its twenty-two single-spaced page summary of adjudicatory facts for termination of parental rights, DCF alleged, inter alia, that: (A) since October 14, 2002, DCF had been involved with the family; (B) on March 15, 2004, the court found that DCF had made reasonable efforts to prevent the removal of Kristina from her parents; (C) on June 2, 2004, the court found that DCF had made reasonable efforts (i) to reunify Kristina with the mother and the father, (ii) to achieve the permanency plan of such reunification, and (iii) that further efforts toward reunification of Kristina with the mother and the father should continue; (D) DCF believed that additional efforts by it to reunify Kristina with her biological parents were not appropriate, inter alia, "because despite the mother participating in mental health and parenting services, she continues to demonstrate impaired functioning toward parenting the child . . ."; (E) the "presenting problems with this family are the mother's mental health impairment. She is diagnosed as Schizotypal Personality Disorder for which the mother has no acceptance or insight. Her diagnosis and lack of rehabilitation renders her unable to function appropriately as a parent and places said child at significant risk for physical and emotional harm . . ."; (F) the following services were offered to the mother:
(i) Connecticut Resource Group;
(ii) Northwest Center for Mental Health;
(iii) Family Service of Greater Waterbury;
(iv) Jewish Family Services;
(v) UCONN Health Center Sleep Disorder Center;
(vi) Family Ties;
(vii) Wheeler Clinic;
(viii) Family Service of Greater Waterbury;
(ix) Bristol Hospital;
(x) Charlotte Hungerford Hospital;
(xi) Waterbury Youth Services; and
(xii) Waterbury Hospital Behavioral Health;
(G) the mother was unwilling or unable to benefit from reunification services because:
despite the offering of services since 10/02, the mother continues to demonstrate inadequate parenting skills and impaired mental health functioning that places the child at risk of physical and emotional harm . . .; and
(H) the mother failed to comply with several of the specific steps.
APPLICABLE LAW:
C.G.S. section 17a-93 provides: "As used in sections 17a-90 to 17a-124, inclusive, and 17a-152: . . . (e) `Termination of parental rights' means the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his parent or parents so that the child is free for adoption except it shall not affect the right of inheritance of such child or the religious affiliation of such child . . ."
C.G.S. section 45a-707(8) also defines the termination of parental rights as above:
"`Termination of parental rights' means the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and the child's parent or parents so that the child is free for adoption except it shall not affect the right of inheritance of the child or the religious affiliation of the child . . ."
1. Prerequisite to any TPR determination, and the statutory grounds alleged by the petitioner DCF:
The first two prerequisites to a determination that any TPR petition should be granted is that the court must find by clear and convincing evidence that:
(1) DCF "has made reasonable efforts to locate the parent and to reunify the child with the parent, unless the court finds in this proceeding that the parent is unwilling or unable to benefit from reunification efforts provided such finding is not required if the court has determined at a hearing pursuant to subsection (b) of section 17a-110 or section 17a-111b that such efforts are not appropriate, [and]
(2) that termination is in the best interest of the child . . ." (C.G.S. 17a-112(j)(3).)
The third requirement is that the court find, by clear and convincing evidence, that DCF has proved at least one of seven statutory grounds for termination. The ground that is alleged in this case is:
"The respondent also claims that the court improperly found that there was no ongoing parent-child relationship between the respondent and the child pursuant to § 17a-112(j)(3)(D)). We decline to review that claim. `Because the statutory grounds necessary to grant a petition for termination of parental rights are expressed in the disjunctive, the court need find only one ground to grant the petition. Thus, we may affirm the court's decision if we find that it properly concluded that any one of the statutory circumstances existed.' In re Brea B., 75 Conn.App. 466, 473, 816 A.2d 707 (2003). Having concluded that the court properly found that there was clear and convincing evidence that the respondent failed to rehabilitate herself pursuant § 17a-112(j)(3)(B)(ii), we need not address the respondent's remaining claim." In re Shaun B., 97 Conn.App. 203, 214, 903 A.2d 246 (2006). "After determining whether one of the statutory grounds for termination of parental rights under General Statutes § 17a-112(j) exists by clear and convincing evidence, a judge is required to evaluate whether severing the legal tie between parent and child is in the child's best interest." In re Davonta V., 98 Conn.App. 42, 43 (2006), cert. granted, 280 Conn. 947 (2006).
. . . (B) the child (i) has been found by the Superior Court or the Probate Court to be neglected or uncared for in a prior proceeding . . . and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . .
Despite the order in section 17a-112(j) in which the statutory prerequisites to be proved are set forth, prior to any termination of parental rights, "[i]f the trial court determines that a statutory ground for termination exists, then it proceeds to the dispositional phase. During the dispositional phase, the trial court must determine whether termination is in the best interests of the child." In re Eden F., 250 Conn. 674, 689, 741 A.2d 873 (1999).
2. Explanation of Ground B, failure to rehabilitate: A. General standards:
In In re Halle T., 96 Conn.App. 815, 835, 902 A.2d 670 (2006), the Appellate Court has explained the failure to rehabilitate requirements as follows:
"`Failure to achieve a sufficient degree of personal rehabilitation is one of the seven statutory grounds on which parental rights may be terminated under § 17a-112(j)(3). We have stated that [p]ersonal rehabilitation as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent . . . [Section 17a-112] requires the trial court to analyze the [parent's] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time . . . Rehabilitate means to restore [a . . . delinquent person] to a useful and constructive place in society through social rehabilitation . . . The statute does not require [a parent] to prove precisely when she will be able to assume a responsible position in her child's life. Nor does it require her to prove that she will be able to assume full responsibility for her child, unaided by available support systems. It requires the court to find, by clear and convincing evidence, that the level of rehabilitation she has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date she can assume a responsible position in her child's life . . ." (Emphasis in original.)
The Appellate Court also elucidated the foregoing finding requirement as follows:
"`[T]he adjudicatory determination to be made by the trial court is whether the parent of a child who has been found by the [S]uperior [C]ourt to have been neglected [or] uncared for in a prior proceeding has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . In conducting this inquiry, the trial court must analyze the respondent's rehabilitative status as it relates to the needs of the particular child . . .' Although the standard is not full rehabilitation, the parent must show more than any rehabilitation. Successful completion of the petitioner's expressly articulated expectations is not sufficient to defeat the petitioner's claim that the parent has not achieved sufficient rehabilitation . . . [I]n assessing rehabilitation, the critical issue is not whether the parent has improved [her] ability to manage [her] own life, but rather whether [she] has gained the ability to care for the particular needs of the child at issue . . . Thus, even if a parent has made successful strides in her ability to manage her life and may have achieved a level of stability within her limitations, such improvements, although commendable, are not dispositive on the issue of whether, within a reasonable period of time, she could assume a responsible position in the life of her children.' (Citations omitted; emphasis added; internal quotation marks omitted.) In re Alejandro L., 91 Conn.App. 248, 259-60, 881 A.2d 450 (2005); see also In re Amneris P., 66 Conn.App. 377, 383-84, 784 A.2d 457 (2001); In re John C., 56 Conn.App. 12, 17-18, 740 A.2d 496 (1999)." In re Halle T., supra, 96 Conn.App. at 835-36.
The Appellate Court also referred to Supreme Court statements of the applicable standards:
"Our Supreme Court has instructed that the applicable standard in these types of cases `requires the court to find, by clear and convincing evidence, that the level of rehabilitation [a parent] has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date she can assume a responsible position in her child's life." (Internal quotation marks omitted.) In re Eden F., 250 Conn. 674, 706, 741 A.2d 873 (1999); see also In re Jeisean M., 270 Conn. 382, 399, 852 A.2d 643 (2004); In re John G., supra, 56 Conn.App. 17; In re Juvenile Appeal (84-3), 1 Conn.App. 463, 477, 473 A.2d 795, cert. denied, 193 Conn. 802, 474 A.2d 1259 (1984). A finding of when the respondent would be able to resume caring for the child was required neither by statute nor by case law. Instead, the court properly examined whether, `within a reasonable time, considering the age and needs of the child, [the] parent could assume a responsible position in the life of the child . . .' (Internal quotation marks omitted.) In re John G., supra, 17." In re Halle T., supra, 96 Conn.App. at 837.
The Appellate Court then focused on the importance of the factual context of the child's circumstances in each case:
"We recently emphasized the importance of conducting this inquiry by considering the factual context of the particular child's situation. `The trial court must also determine whether the prospects for rehabilitation can be realized within a reasonable time given the age and needs of the child . . . What constitutes a reasonable time is a factual determination that must be made on a case-by-case basis.' (Citation omitted; emphasis added; internal quotation marks omitted.) In re Alejandro L., supra, 91 Conn.App. 260; see also In re Eden F., supra, 250 Conn. 706; In re Christina V., 38 Conn.App. 214, 220-21, 660 A.2d 863(1995); see also In re Shyliesh H., 56 Conn.App. 167, 173-74, 743 A.2d 165 (1999) (respondent's failure to achieve rehabilitation illustrated by lack of understanding of child's medical, psychiatric condition)." In re Halle T., supra, 96 Conn.App. at 837-38.
Finally, the Appellate Court noted that in a number of cases the parent was unable to meet the standard of rehabilitation sufficiently to have the child returned and to avoid a termination of parental rights:
"The court acknowledged the evidence that the respondent had made some progress in personal rehabilitation. Nevertheless, when viewed in the light of the child's significant needs, such progress, made over approximately two years, was insufficient when considered in relation to the child's special needs and her need for permanency. Our case law contains numerous examples of a parent, who, despite an admirable attempt, was unable to achieve rehabilitation sufficiently and, as a result, lost his or her parental rights. See, e.g., In re Vanna A., supra, 83 Conn.App. 22-25; In re Sheila J., supra, 62 Conn.App. 479-82 (respondent's efforts at rehabilitation too little, too late and court's finding that she failed to achieve sufficient rehabilitation despite some level of stability not clearly erroneous); In re Shyliesh H., supra, 56 Conn.App. 172-75 (although respondent testified that he loved child, trial court's finding that he lacked insight, responsibility to cope with her significant psychiatric disorder supported determination of failure to achieve rehabilitation)." In re Halle T., supra, 96 Conn.App. at 838-39. (Footnote omitted.)
In an earlier decision, the Appellate Court noted that the trial court must consider the complete history of the respondent's parenting abilities:
"The court, however, makes an inquiry into the full history of the respondent's parenting abilities. In re Galen F., 54 Conn.App. 590, 594, 737 A.2d 499 (1999)." In re Jennifer W., 75 Conn.App. 485, 499, 816 A.2d 697 (2003), cert. den. 263 Conn. 917, 821 A.2d 770 (2003). In a dissolution of marriage context this requirement has been expressed as follows: "`Nevertheless our Supreme Court has also held that "the court must . . . take account of the parents' past behavior, since it must evaluate their present and future parenting ability and the consistency of their parenting for the purpose of determining which parent will better foster the [child's] growth, development and well-being.' Yontef v. Yontef, 185 Conn. 275, 283, 440 A.2d 899 (1981)." Gil v. Gil, 94 Conn.App. 306, 322, 892 A.2d 318 (2006).
B. Ground B exception to the usual rule that in the adjudicatory phase, the judicial authority is limited to evidence of events occurring prior to the filing of the TPR petition, as amended:Connecticut Practice Book section 35a-7 provides that
"(a) in the adjudicatory phase, the judicial authority is limited to evidence of events preceding the filing of the petition or the latest amendment, except where the judicial authority must consider subsequent events as part of its determination as to the existence of a ground for termination of parental rights.
"(b) In the discretion of the judicial authority, evidence on adjudication and disposition may be heard in a non-bifurcated hearing, provided disposition may not be considered until the adjudicatory phase has concluded."
In In re Latifa K., 67 Conn.App. 742, 748, 789 A.2d 1024 (2002), the Appellate Court explained the language of Conn. Practice Book section 33-3(a), the predecessor of section 35a-7, as follows: "`A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition.' (Internal quotation marks omitted.) In re Roshawn R., 51 Conn.App. 44, 52, 720 A.2d 1112 (1998). `In the adjudicatory phase of termination proceedings, the court determines the validity of the grounds alleged in the petition, and therefore is limited to events preceding the filing date of the petition. In the disposition phase, the court is concerned with what action should be taken in the best interests of the child, and in that phase the court is entitled to consider facts occurring until the end of the trial.' In re Romance M., 30 Conn.App. 839, 859, 622 A.2d 1047 (1993), appeal dismissed, 229 Conn. 345, 641 A.2d 378 (1994).
"Despite Practice Book [section] 33-3 (a) and case. law regarding termination proceedings generally, we have determined that with regard to termination petitions brought under [section] 17a-112(c)(3)(B), the trial court may, in the adjudicatory phase, properly consider facts and events that occur after the filing date of the petition in determining whether a respondent has achieved a sufficient degree of personal rehabilitation within the meaning of that statute. See In re Stanley D., 61 Conn.App. 224, 230, 763 A.2d 83 (2000). In In re Stanley D., we addressed a claim that the trial court improperly found that the respondent had not achieved sufficient personal rehabilitation within the meaning of [section] 17a-112(c)(3)(B). Id., 225, 763 A.2d 83. In our explanation of the requirements of [section] 17a-112(c)(3)(B) and the hearing process for petitions to terminate parental rights based on that section, we stated that `[p]ersonal rehabilitation' refers to the reasonable foreseeability of the restoration of a parent to his or her former constructive and useful role as a parent, not merely the ability to manage his or her own life . . . In the adjudicatory phase, the court may rely on events occurring after the date of the filing of the petition to terminate parental rights when considering the issue of whether the degree of rehabilitation is sufficient to foresee that the parent may resume a useful role in the child's life within a reasonable time." (Citation omitted; emphasis in original.) The respondent, therefore, cannot prevail on his claim that the court could not consider whether he had achieved personal rehabilitation during the eighteen months subsequent to the filing of the petitions." Id., 748-49.
In Ground (B)(i) cases, a court may consider events subsequent to the filing date of the petitions, but it does not have to do so: "This court has expanded that rule [set forth in section 35a-7(a)] to allow courts to consider events subsequent to the filing date of the petitions in the adjudicatory phase of termination proceedings. `Practice Book [section] 33-3(a) [now section 35a-7] limits the time period reviewable by the court in the adjudicatory phase to the events preceding the filing of the petition or the latest amendment . . . In the adjudicatory phase, the court may rely on events occurring after the date of the filing of the petition to terminate parental rights when considering the issue of whether the degree of rehabilitation is sufficient to foresee that the parent may resume a useful role in the child's life within a reasonable time.' (Citations omitted; emphasis added; internal quotation marks omitted.) In re Stanley D., supra, 61 Conn.App. at 230, 763 A.2d 83; see In re Amber B., 56 Conn.App. at 776, 785, 746 A.2d 222, (2000).
"The respondent's appeal challenges the evidence that a court must consider during the adjudicatory phase of the proceedings. The respondent argues that because this court has stated that trial courts may, in their discretion, consider such evidence, fundamental fairness requires the trial court to consider those events that take place up until the hearing. We do not agree with the respondent." In re Jennifer W., supra, 75 Conn.App. at 494-95. CT Page 994
C. The relationship between a respondent's compliance with the "specific steps" and whether there is "sufficient rehabilitation":
Pursuant to C.G.S. section 46b-129(d):". . . The court, after a hearing pursuant to this subsection, shall order specific steps the commissioner and the parent or guardian shall take for the parent or guardian to regain or to retain custody of the child or youth . . ." The Supreme Court has emphasized the importance of compliance by each respondent with the specific steps:
"The specific steps that a respondent and DCF must follow in order to provide an opportunity for reunification. Although the present appeal does not concern a termination proceeding, we note that specific steps are considered to be `fair warning' to a parent of the potential termination of parental rights in subsequent proceedings. In re Jeffrey C., 64 Conn.App. 55, 62, 779 A.2d 765 (2001), rev'd on other grounds, 261 Conn. 189, 802 A.2d 772 (2002). Indeed, the failure to comply with specific steps ordered by the court typically weighs heavily in a termination proceeding . . ." In re Devon B., 264 Conn. 572, 584 (2003). For an explanation and application of DCF's obligations pursuant to the specific steps, see In re Leah S., 96 Conn.App. 1 (2006), cert. granted, 280 Conn. 911 (2006).
The Appellate Court has explained that successful completion of the specific steps, e. g., "petitioner's expressly articulated expectations," is, by itself, "not sufficient to defeat the petitioner's claim that the parent has not achieved sufficient rehabilitation. In re Vincent D., supra, 65 Conn.App. at 670, 783 A.2d 534." In re Jennifer W., supra, 75 Conn.App. at 500. In Vincent D., the Appellate Court explained: "In determining whether a parent has achieved sufficient personal rehabilitation, a court may consider whether the parent has corrected the factors that led to the initial commitment, regardless of whether those factors were included in specific expectations ordered by the court or imposed by the department . . . Accordingly, successful completion of expressly articulated expectations is not sufficient to defeat a department claim that the parent has not achieved sufficient rehabilitation . . ." (Citations omitted.) In re Vincent D., 65 Conn.App. 658, 670, 783 A.2d 534 (2001).
With appropriate notice, the court may order specific compliance with the specific steps, and the court may enforce its order with its contempt power. In re Jeffrey C., 261 Conn. 189, 802 A.2d 772 (2002). CT Page 995
3. The best interest of the child requirements:
"After determining whether one of the statutory grounds for termination of parental rights under General Statutes § 17a-112(j) exists by clear and convincing evidence, a judge is required to evaluate whether severing the legal tie between parent and child is in the child's best interest. That task is among the most sensitive and difficult with which a judge is charged. Although a judge is guided by legal principles, the ultimate decision to terminate parental rights is intensely human. It is the judge in the courtroom who looks the witnesses in the eye, interprets their body language, listens to the inflections in their voices and otherwise assesses the subtleties that are not conveyed in the cold transcript." In re Davonta V., supra, 98 Conn.App. at 42, 43."A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition . . . In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights [under § 17a-112(j)] exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child." (Internal quotation marks omitted.) In re Brea B., 75 Conn.App. 466, 469-70, 816 A.2d 707 (2003).
"In the dispositional phase of a termination of parental rights hearing, `the emphasis appropriately shifts from the conduct of the parent to the best interest of the child.' In re Romance M., 229 Conn. 345, 356-57, 641 A.2d 378 (1994). During this dispositional phase, `the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent's parental rights is not in the best interest of the child. In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in § 17a-112[k].' In re Tabitha P., 39 Conn.App. 353, 361-62, 664 A.2d 1168 (1995). We note that those `seven factors serve simply as guidelines for the court and are not statutory prerequisites that need to be proven before termination can be ordered . . . There is no requirement that each factor be proven by clear and convincing evidence.' (Citation omitted.) In re Victoria B., 79 Conn.App. 245, 261, 829 A.2d 855 (2003)." In re Davonta V., supra, 98 Conn.App. at 46-47. (Footnote omitted.)
Although the focus in the dispositional phase "appropriately shifts from the conduct of the parent to the best interest of the child . . ." CT Page 996 In re Romance M., supra, the sixth required finding in § 17a-112(k) is to consider ". . . the efforts the parent has made to adjust such parent's circumstances, conduct, or conditions to make it in the best interest of the child to return such child home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions, and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; . . ."
Also, although "the best interest of the child" is referred to as a dispositional focus, the concept also appears in one of the adjudicatory grounds, Ground D, no parent-child relationship:
"(D) there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day-to-day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child . . ." (C.G.S. § 17a-112(j)(3).)
Also, C.G.S. § 17a-112(q) provides that the "provisions of this section shall be liberally construed in the best interest of any child for whom a petition under this section has been filed." The seven adjudicatory grounds are part of "the provisions of this section," e. g., § 17a-112.
Effective October 1, 2005, in C.G.S. § 46b-56, the General Assembly established a set of factors that the court may consider in determining the best interest of a child when entering a custody order, some of which factors may be applicable in a TPR case. C.G.S. § 46b-56(c) is as follows:
"(c) In making or modifying any order as provided in subsections (a) and (b) of this section, the court shall consider the best interests of the child, and in doing so may consider, but shall not be limited to, one or more of the following factors:
(1) The temperament and developmental needs of the child;
(2) the capacity and the disposition of the parents to understand and meet the needs of the child;
(3) any relevant and material information obtained from the child, including the informed preferences of the child;
(4) the wishes of the child's parents as to custody;
(5) the past and current interaction and relationship of the child with each parent, the child's siblings and any other person who may significantly affect the best interests of the child;
(6) the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate, including compliance with any court orders;
(7) any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents' dispute;
(8) the ability of each parent to be actively involved in the life of the child;
(9) the child's adjustment to his or her home, school and community environments;
(10) the length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment, provided the court may consider favorably a parent who voluntarily leaves the child's family home pendente lite in order to alleviate stress in the household;
(11) the stability of the child's existing or proposed residences, or both;
(12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, shall not be determinative of custody unless the proposed custodial arrangement is not in the best interests of the child;
(13) the child's cultural background;
(14) the effect on the child of the actions of an abuser, if any domestic violence has occurred between the parents or between a parent and another individual or the child;
(15) whether the child or a sibling of the child has been abused or neglected, as defined respectively in section 46b-120; and
(16) whether the party satisfactorily completed participation in a parenting education program established pursuant to section 46b-69b. The court is not required to assign any weight to any of the factors that it considers."
This court's responsibility does not include where or with whom a child should live after a termination of parental rights, and thus this court should not enter orders concerning such matters as part of any TPR case disposition:
"In the dispositional phase of a termination proceeding, the court properly considers only whether the parent's parental rights should be terminated, not where or with whom a child should reside following termination." In re Sheena I., 63 Conn.App. 713, 726, 778 A.2d 997 (2001).
However, after termination of parental rights the court generally appoints DCF as each child's statutory parent, see C.G.S. 17a-146: ". . . the Commissioner of Children and Families shall exercise and have all authority, rights, duties and functions granted to or imposed upon the Commissioner of Social Services in the general statutes in the area of adoption of children, including, but not limited to, authority . . . to act as a statutory parent, as defined in section 45a-707."
C.G.S. section 17a-93 provides: "As used in sections 17a-90 to 17a-124, inclusive, and 17a-152: . . . (f) `Statutory parent' means the Commissioner of Children and Families or that child-placing agency appointed by the court for the purpose of giving a minor child or minor children in adoption . . ."
C.G.S. section 45a-707(7) also provides: "`Statutory parent' means the Commissioner of Children and Families or the child-placing agency appointed by the court for the purpose of the adoption of a minor child or minor children . . ."
C.G.S. section 17a-112(m) provides: ". . . The Superior Court may appoint a statutory parent at any time after it has terminated parental rights if the petitioner so requests."
C.G.S. section 17a-112(o) provides: "In the case where termination of parental rights is granted, the guardian of the person or statutory parent shall report to the court within thirty days of the date judgment is entered on a case plan, as defined by the federal Adoption Assistance and Child Welfare Act of 1980, for the child which shall include measurable objectives and time schedules. At least every three months thereafter, such guardian or statutory parent shall make a report to the court on the progress made on implementation of the plan . . . If the court determines that the department has not made reasonable efforts to place a child in an adoptive placement or that reasonable efforts have not resulted in the placement of the child, the court may order the Department of Children and Families, within available appropriations, to contract with a child-placing agency to arrange for the adoption of the child. The department, as statutory parent, shall continue to provide care and services for the child while a child-placing agency is arranging for the adoption of the child."
In determining the best interest of a child, the court considers and applies, inter alia, the concepts of stability, closure and permanency:
"It is abundantly clear that the court gave careful consideration to the concepts of closure and permanency and did not simply use those terms as empty incantations." In re Davonta V., supra, 98 Conn.App. at 53. "In its decision, the court found by clear and convincing evidence that the children's best interests would be served by granting the petitions to terminate the respondent's parental rights. In support of that finding, the court noted that much of the children's short lives had been spent in the custody of the commissioner, and that the children needed stability and permanency in their lives. On the basis of those facts, we conclude that the court's determination that the respondent's parental rights should be terminated was not clearly erroneous." In re Alejandro L., supra, 91 Conn.App. at 262.
4. The standard of clear and convincing evidence:
In In re Cheyenne A., 59 Conn.App. 151, 158-59, 756 A.2d 303 (2000), cert. denied, 254 Conn. 940 (2000) the Appellate Court explained the standard of proof by clear and convincing evidence:
"While it is true that evidence of the respondent's acts of omission was largely circumstantial, that evidence was sufficient. The law does not distinguish between direct and circumstantial evidence as far as probative force is concerned. State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984). The standard of clear and convincing proof used in this case denotes a degree of belief that lies between the belief that is required to find the truth or existence of the issuable fact in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution. Dacey v. Connecticut Bar Ass'n., 170 Conn. 520, 536-37, 368 A.2d 125 (1976). In a criminal case, the jury may draw reasonable, logical inferences from the facts proven as long as they do not resort to speculation and conjecture. State v. Festo, 181 Conn. 254, 259, 435 A.2d 38 (1980). In a case involving substantial circumstantial evidence, the cumulative impact of a multitude of facts, and not any one fact, may establish guilt. State v. Bember, 183 Conn. 394, 397, 439 A.2d 387 (1981). Insofar as circumstantial evidence can be and is routinely used to meet the higher standard of proof in a criminal prosecution, so can it be used in a case such as this where the applicable standard is that of clear and convincing proof." (Internal quotation marks omitted.) In re Juvenile Appeal (85-2), supra, 3 Conn.App. 192-93.
In Miller v. Commissioner of Corrections, 242 Conn. 745, 794-95 (1997), Justice Borden explained such standard:
"The clear and convincing standard of proof is substantially greater than the usual civil standard of a preponderance of the evidence, but less than the highest legal standard of proof beyond a reasonable doubt. It `is sustained if the evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.' (Emphasis added; internal quotation marks omitted.) State v. Bonello, 210 Conn. 51, 66, 554 A.2d 277, cert. denied, 490 U.S. 1082, 109 S.Ct. 2103, 104 L.Ed.2d 664 (1989).
"Although we have characterized this standard of proof as a `middle tier standard'; J. Frederick Scholes Agency v. Mitchell, 191 Conn. 353, 358, 464 A.2d 795 (1983); and as `an intermediate standard'; State v. Davis, supra, 229 Conn. 293; between the ordinary civil standard of a preponderance of the evidence, or more probably than not, and the criminal standard of proof beyond a reasonable doubt, this characterization does not mean that the clear and convincing standard is necessarily to be understood as lying equidistant between the two. Its emphasis on the high probability and the substantial greatness of the probability of the truth of the facts asserted indicates that it is a very demanding standard and should be understood as such . . . We have stated that the clear and convincing evidence standard `should operate as a weighty caution upon the minds of all judges, and it forbids relief whenever the evidence is loose, equivocal or contradictory.' (Internal quotation marks omitted.) Lopinto v. Haines, 185 Conn. 527, 539, 441 A.2d 151 (1981) . . ." (Footnotes omitted.)
5. Weight to be given to testimony from court-appointed psychologists:
In Davonta V., supra, 98 Conn.App. at 50,[fn 3] the Appellate Court stated:
"`The psychological testimony from professionals is rightly accorded great weight in termination proceedings. In re Nicolina T., 9 Conn.App. 598, 605, 520 A.2d 639, cert. denied, 203 Conn. 804, 525 A.2d 519 (1987).' (Internal quotation marks omitted.) In re Kezia M., 33 Conn.App. 12, 22, 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993)." (Emphasis added.)
In an earlier case, the Appellate Court also stated essentially the same proposition:
"Psychological testimony from professionals is appropriately accorded great weight in termination proceedings." In re Shyliesh H., 56 Conn.App. 167, 176, 743 A.2d 165 (1999) (Emphasis added.)
However, "[a]s in other areas where expert testimony is offered, a trial court is free to rely on whatever parts of an expert's opinion the court finds probative and helpful . . . In family cases in particular, it would be anomalous to require a trial court to assign particular weight to a report which is based on statements that the trial court may evaluate differently and on circumstances that may have changed." Yontef v. Yontef, 185 Conn. 275, 281-82, 440 A.2d 899 (1981). See also Ford v. Ford, 68 Conn.App. 173, 190 (2002): "`. . . [A] trial court is free to rely on whatever parts of an expert's opinion the court finds probative and helpful.' Yontef v. Yontef, 185 Conn. 275, 281, 440 A.2d 899 (1981)."
6. The construction of C.G.S. section 17a-112:
As set forth above, C.G.S. Section 17a-112(q) provides that the "provisions of this section shall be liberally construed in the best interest of any child for whom a petition under this section has been filed."
However, "[f]amily reunification is an important social objective. As our Supreme Court recently has reminded us: `[A]n important goal of the child protection statutes, in addition to protecting children from abuse and neglect, is to preserve family integrity by . . . teaching parents the skills they need to nurture and care for their children.' Teresa F. v. Ragaglia, 272 Conn. 734, 754, 865 A.2d 428 (2005)." In re Christina M., 90 Conn.App. 565, 570-71, 877 A.2d 941 (2005), affirmed, 280 Conn. 474 (2006).
7. The balancing of the legitimate interests of the parents, children and the state of Connecticut:
"The desire and right of a parent to maintain a familial relationship with a child cannot be separated from the desire and best interest of a child either to maintain or to abandon that relationship, or the interest of the state in safeguarding the welfare of children. The legitimate interests of parent, child and state require a balancing of the factors involved in those interests . . . In every case involving parental rights, a struggle exists between parents and the state to determine what is in the child's best interest, the child being the focus of the struggle . . ." (Citations omitted.) In re Shaquanna M., 61 Conn.App. 592, 598-99, 767 A.2d 155 (2001).
Former Chief Justice Peters has noted: "Cases involving the termination of parental rights are always difficult . . . Accordingly, the court sought the proper balance between the parents' constitutionally protected interest in the care, custody and control of their children, and the interest of the state, acting as parens patriae, to protect the children's health and safety." In re Christina M., supra, 90 Conn.App. at 566-67.
FINDINGS OF FACT:
1. During her childhood the mother believes that she hit or bumped her head on several occasions. (Exhibit 1, 6.)
2. During her childhood, the mother remembered that she "was always `nervous and tired.'" Id.
3. The mother was more interested in the social rather than the learning aspects of school. Id.
4. In high school, the mother suffered from frequent headaches. Id.
5. Eventually the mother suffered a seizure. Id.
6. She was taken to the hospital and a right frontal lobe brain tumor was discovered and surgically removed. Id. The mother stated to DCF that except for the need on one occasion after high school to remove fluid from the right frontal lobe area, "she has not had any further treatment or assessment of this medical condition since her recovery from surgery." Id., 7.
7. The mother stated that "in high school she tried pot, beer, mixed drinks and speed. The speed was to keep her awake as she always had problems with being tired . . . [The mother] stated that she has never been a good sleeper and is always tired which has contributed to chronic problems with employment and continuing her education as she has always missed classes." Id.
8. The mother completed a course to train her as a medical assistant. Id., 8. Thereafter, the mother obtained employment in the medical field. Id., 8-11.
9. The mother took courses, including chemistry, at a community college. She told DCF that "the chemistry teacher did not like her as she missed many classes due to her inability to get out of bed." Id., 9.
10. At some point (the mother could not remember the date) while she was working for a physician in Middletown, the mother "nodded off" and the car she was driving "hit a light fixture, but [she] suffered no major problems. The car was totaled." Id., 10.
11. During many of her different employment locations, the mother had "social issues," and was terminated from some jobs. Id., 8-11.
12. The mother did not have long-term or satisfactory dating relationships. Id.
13. The mother also continued to have issues of tiredness: "[The mother] was working . . . in Florida and says one of the nurses did not like her although she does not know why. She remembered that she was very tired all the time and had trouble getting to work on time on a consistent basis. She had broken up with [a boyfriend] . . ."- Id., 11. The mother stated to DCF that she asked for three days off to go to a concert in Woodstock, NY, but she was given a "pink slip" and was told by her employer that "she needed more than 3 days off to deal with her issues." Id.
14. She returned to Connecticut and found employment. Id. She was "fired due to being late every day and [for] questioning diagnos[e]s that the doctors gave to patients." Id.
15. She went to Colorado to live with her sister. Id., 11-12. She told DCF that after a period of time ". . . her sister no longer wanted her staying in her home . . ." but she could not afford her own apartment and "so she decided to come back to Connecticut." Id., 12. 16. In September 2005, she moved in with her parents who live in Connecticut. Id., 12. She claimed to DCF that since that date her parents' home has been her residence. Id. However, ". . . she spends a large amount of her time, including staying overnight, at the homes of her various boyfriends." Id.
17. She had a cat and "she always put a long rope around the cat's neck so she could watch him out the window as he went about the yard." Id. One day when the cat was outside, the cat disappeared from her view. Id. When she located the cat, she found that he had been "stricken," and "[h]is tongue was blue . . ." Id. "` . . . My mother was there and I was crying. She told me that my father had to bury the cat in the yard with the 12 other cats that we had that died. I did not want him to be buried that day. I wanted my father to wait another day but he went ahead and buried him. That night I hear[d] meowing. To this day I am tortured thinking we buried the cat alive.'" Id., 13. The mother "was asked if she determined the cat was no longer breathing as a way to know the cat had died. She replied that he was not breathing but she thinks that was due to the fact that, `he was just meditating' and not because he died." Id.
18. The mother had a number of temporary jobs that ". . . were supposed to lead to permanent employment but none of them worked out." Id.
19. The mother's self-report of her history demonstrates several years of transience in employment and an inability to keep jobs that she had obtained. Id., 7-15. She was unemployed in January 2007, at the commencement of the trial.
20. The mother's self-report of her history demonstrates her inability to complete college. In 1998, she returned to the community college she had attended "in the fall semester but once again she left mid semester. She stated that she had been attending this school since 1987. She told DCF in 2003 that she had plans to go back [to college] but was also thinking of college courses . . . [The mother] has not returned to attending school during DCF involvement." Id., 14.
21. The mother's self-report of her history demonstrates her self-defeating interpersonal difficulties and conflicts. Id., 7-25. These include conflicts in her employment relationships, failed relationships and conflicts with multiple boyfriends, and conflicts with her and Kristina's providers: "She has had difficulty interacting with her daughter Kristina's medical provider [pediatrician] . . . as she feels the office does not follow proper procedures. It has been pointed out to [the mother] that she worked [at a pediatrician's office] on Sundays when only sick child visits were scheduled and that well child visits do not always involve the same procedures. Specifically, [the mother] wanted her daughter's temperature taken at each visit although they have all been well child visits. The pediatrician explained that this is not necessary. [The mother] told the staff that if they are unwilling to take the temperature, she will do it for them. She was reported to be argumentative with the doctor's staff." Id., 14. The mother had ". . . worked in a pediatrician's office on Sundays only, doing paperwork and taking vitals. This job lasted for one year." Id. Several other instances were brought to the court's attention where because the mother was "in the medical field" she believed that she, and not medical professional providers, knew the correct medical procedure. See, e. g., id., 18, 28; see below and paragraph 24. The mother refused to follow clinical recommendations for treatment and medication. Id., 21-22. She refused to take medication that she was prescribed. Id.
She prevented Kristina from having immunizations until DCF directed the physician to give the immunizations to Kristina. (Exhibit 12, 16.) On November 22, 2002, she claimed that "immunizations are not necessary and will make her child ill. She states that her child is too small for immunizations. She does not believe the physician has more knowledge about these matters than she does and has stated that she and the assigned social worker `just could read a book' and could be considered physicians. She states that immunization schedules are set only for the physician's convenience, as they are concerned that a parent will not return to the office. She states that she knows these things as she `is in the medical field.' When informed that [the pediatrician] was authorized by DCF to administer the immunizations, [the mother] became hysterical, crying and yelling that she would be bringing a police officer to the doctor's office to stop the immunizations from being given. [The mother] now denies this is how she responded. [The pediatrician's] office has stated that if [the mother's] unruly conduct continued she would be restricted from entering their office. [The mother] was also informed that immunizations are necessary for a child to enter school to which she replied she would not send her child to school but would rather home school her so that immunizations would not be needed." Id. The mother refused to accept and believe information from the pediatrician: "[The pediatrician] has explained to [the mother] that Kristina has normal anatomy and will not choke with the bottle nipple in her mouth. [The pediatrician] told [the mother] that Kristina's lungs are clear and she does not have fluid in her lungs as [the mother] has repeatedly asserted. [The mother] repeated her belief that Kristina continues to have fluid in her lungs during a DCF office visit with Kristina on 1/30/03." Id., 17.
22. The mother's self-report demonstrates a multi-year history of housing transience that has continued after the initiation of DCF involvement with her and Kristina through the present.
23. Since at least 1995, if not before, the mother has been diagnosed with narcolepsy. (Exhibit 1, 17.) Characteristically, she did not want to take the medication that was prescribed for such condition. Id. In 2004, "DCF referred [the mother] and paid for a sleep study evaluation at UCONN per court order. Three reports from [UCONN] were received diagnosing [the mother] with narcolepsy . . . [The mother] requires a treatment program that includes medication, driving restrictions and sleep/nap routines." Id., 22. The mother was referred to a respiratory physician but claimed that "she preferred to have her psychiatrist . . . follow her for treatment of her narcolepsy." Id. In his testimony, the psychiatrist stated that she had been a patient for one visit in 2003, but not thereafter. Despite this, the mother did not follow up the DCF referral to the respiratory physician. Such psychiatrist did refer the mother to the Family Intervention Center, but the mother did not successfully transition there. The mother did not successfully follow her narcolepsy treatment program. Id., 23.
24. The mother reported to DCF "`several serious' boyfriend relationships that did not work out. She said `I wanted to be serious and they did not.'" Id., 15.
25. After Kristina's birth, the mother had a psychotic reaction. Id., 18-19. See. e.g., exhibit 12, 2-3. Kristina was certified by a physician as "medically complex due to her prematurity, intrauterine growth retardation, placental insufficiency, low birth weight, slow weight gain and feeding adaptation.
"While hospitalized, the specialized care she received due to her prematurity included being kept in an isolet and having a nasal tube. These are standard procedures for premature infants according to the hospital. [The mother] was opposed to both procedures and told staff that the isolet and nasal tube were stressing her daughter, causing the baby's blood pressure to rise and therefore needed to be removed. [The mother] has acknowledged to DCF that she did want these procedures removed, as she is knowledgeable about medical procedures and [she] determined they were not needed. The hospital also reported that [the mother] demanded that nursing staff stop feeding the newborn as she felt she had enough." Id., 15. During supervised visitation before February 7, 2003, the mother continued to think and act inappropriately concerning Kristina's feeding. Id., 15-16. She argued with and had physical contact with the father during the feeding of Kristina. Id., 16. The parents generally arrived between ten and forty minutes late for their visitation. Id., 18. The DCF worker observed: "Upon arriving, [the mother] at every visit, remarks that the baby is ill and sounds congested. This is not observed by DCF staff." Id. The parents' behavior, such as waking Kristina up when she was sleeping, caused her to cry "to the point the baby is shaking and her breath is quivering with the parents having little ability to soothe her." Id., 19. The mother said to the father and to DCF worker: "Her crying bothers you a lot more than it does me. I love to hear her cry. I love it. Crying is good for her. My mother told me that." Id. "Although they are advised on ways to make their visits more successful and [about] ways to alleviate the baby's stress, they are unwilling to follow any suggestions. [On February 6, 2003, when she was approximately three months old, the mother] told Kristina `yes, you're crying because of me. I had to wake you up because I love you so much.'" Id., 20. The mother attempted to clean Kristina in a way that the pediatrician said "was excessive and that potential injury could occur." Id.
25. Prior to and during February 2003, the mother was in the process of removing the father from her and Kristina's life. Id., 18. Among other reasons, the mother did not approve of his heavy smoking, exhibit 1, 27, and his efforts to feed Katrina when she cried, id., 29. In 2003, such father told DCF "that he was somewhat concerned at the hospital after Kristina's birth when [the mother] persisted in claiming their child was a boy but later he felt assured that she posed no threat to his daughter." Id., 27.
26. Prior to February 7, 2003, the maternal grandparents were offered by the mother as a placement resource for Kristina. (Exhibit 12, 17.) "DCF investigated the grandparents but assessed that they had no recognition of their daughter's mental health issues [and] therefore they could not be seen as a safeguard for the baby. DCF has offered visitation to the grandparents but they have never attended a visit. [The mother] says the situation is too difficult for her mother and her mother would spend the time arguing with DCF staff. [The mother] has stated several times that [the maternal grandmother] would not leave the building without her granddaughter and does not care if she was arrested. [The mother] says she believes her mother would actually attempt to remove the baby from DCF [and] therefore it is better that she not visit. [The mother] has commented: `My mother would freak out if she had to watch the baby sleep during a visit. She asked me what I do during visits. I told her I sit there with the baby and the social worker she said that was disgusting.' [The mother] stated to DCF on 2/6/03 that her mother has told her that DCF has no plans to return her child and that the agency `has already lined up adoptive parents for Kristina.' [The mother] says that her mother is extremely negative toward her and berates her at every opportunity about what she sees as her daughter['s] lack of action to regain Kristina's custody." (Exhibit 12, 17-18.) Thus, during the first months after Kristina's birth the mother did not have her mother's (the maternal grandmother's) support of her in connection with the court's and DCF's requirements for her reunification with Kristina, and she did not have her mother's understanding of those requirements and the need to comply with and satisfy them as a prerequisite to any possibility of reunification.
27. Unfortunately, the maternal grandmother's anger and nonacceptance of DCF's role and responsibility for Kristina continued through the filing of the TPR petition, and thereafter. (Exhibit 1, 32.) In the social study for termination of parental rights filed on April 11, 2005, the DCF case worker formerly assigned to the family observed that the maternal grandmother "demonstrated inappropriate behavior on several occasions in Kristina's presence." Id. Such case worker further observed that the maternal grandmother remained "extremely angry regarding Kristina's removal by the Court and [because of] the ongoing DCF involvement. She maintains her granddaughter was `kidnapped.' The grandparents do not accept any of the professional assessments that their daughter is mentally ill. [The maternal grandmother] has stated that Kristina is her daughter's child to raise, not hers. She continues to state that all observations, assessments and representations regarding her daughter's behavior is based on `lies' and done only for ulterior purposes such as securing money for the involved professional parties." Id.
28. The worker who prepared exhibit 1, the TPR social study, had been assigned to the family shortly after Kristina's birth. On October 10, 2006, four years after such birth, the mother had a supervised visitation with Kristina. The maternal grandparents attended such visit. During such supervised visitation, the case aide had to ask the mother to cease using a camera with both still photography and videotaping capability, which use was in violation of DCF policy previously explained to the mother. After the mother ceased to use the camera, the maternal grandmother began to photograph and videotape Kristina with such camera. Despite first being told to stop by the DCF case aide supervising the visitation and then by the case worker, who had been called by the case aide, the maternal grandmother would not cease photographing and videotaping Kristina. The mother's and maternal grandmother's tempers flared, and the mother eventually physically pushed such worker, who was holding Kristina, into a wall.
The DCF case aide averred the following: "I was behind the observation window supervising [the] visit, when [the mother] began to take pictures, with [a] video/digital camera, that she was told in the past that she could not use during visits. [I] went out and reminded her of these rules, when grandmother stepped in, and said she was the one who brought the camera to visit. [I] left the room and went back to the observation room. [I] then noticed that grandmother began to take photos and to video the visit. I . . . again asked them to stop using the camera. Grandmother ignored [my] request and continued to take pictures and video the visit . . . Grandmother asked mother why photos/video were not allowed. Mother responded by saying that DCF did not want child to know who her real family was, because foster parents were paying DCF to keep the child . . . [The DCF case worker] . . . asked to talk to grandmother. Grandmother immediately put her hand up and shouted to worker that she was refusing to talk to her. [The mother] then yelled out demanding that [the case worker] leave the room . . . [The mother] demanded [the case worker] to leave. [The mother] turned to Kristina and told her [the case worker] did not want her to visit her and [the case worker] was mean. Grandmother began to shout . . . [The mother] continued to yell . . . As [the case worker] was trying to leave the room with Kristina in her arms, [the mother] got up and pushed [the case worker], causing her to bang into the wall. Kristina became scared and began to cry . . . Kristina was trembling when I took her. It took several minutes [for me] to calm child down . . ." (Exhibit C3-C, 5.) The case worker sustained injuries to her neck and shoulder. Id., 9. The mother was arrested for the offenses of risk of injury to a child and assault in the third degree. On October 11, 2006, DCF filed a motion to stop visitation, which motion was granted by the court. Id., 1. A restraining order was also issued in the criminal proceedings prohibiting the mother's contact with Kristina. (Exhibit 2, 5.)
29. Neither the mother, the father, nor the maternal grandparents had any recognition of the mother's mental health issues. (Exhibit 12, 22; exhibit 1, 32.) Because of this, neither the father nor the maternal grandparents were viewed by DCF to provide any safeguard for Kristina. (Exhibit 1, 32.)
30. On February 15, 2003, approximately three months after Kristina's birth, the mother participated in a court-ordered psychiatric evaluation. (Exhibit 4.) The board-certified psychiatrist was well qualified to perform such evaluation. (Exhibit 32.) The mother provided to such psychiatrist ". . . a remarkably detailed and often peculiarly detailed report of her sequence of employments and relationships. The mother appeared frequently to report her activities and experiences in a manner which appeared disinhibited or in a manner which appeared to lack an awareness of the social implications of her report . . . Often, [the mother] described herself as being terminated for quite trivial matters or reported herself to have had personal disagreements with her employer or other staff members . . ." (Exhibit 4, 2-3.) "[The mother] reported that she ate mainly watermelon during her pregnancy because she understood, with her medical training, that the fetus does not need protein in the first months of gestation because the predominant growth is during the last month of the pregnancy. When this information was disputed, [the mother] asserted her correctness and cited her medical knowledge." Id., 3.
After Kristina was born in October 2002, "DCF reports were made by hospital staff because of the behaviors of [the mother] and her statements to a variety of hospital personnel on several occasions which were considered to be quite peculiar or possibly out of touch with reality. These interactions and reports included unusual stories from [the mother] regarding implanted embryos and vaginal discharge . . ." Id., 4. The psychiatrist opined that ". . . the specific challenge of having a child is believed to have elicited strongly emotional and strongly distressing emotional difficulties from [the mother] that further impaired her already stressed functional abilities . . . Her comments . . . suggest [the mother's] ambivalence, a [f]ear and active resistance toward caring for her child." Id., 14.
He continued: "[The mother's] inability to accept reassurance regarding her child's health and her failures to notice her child's emotional or physical state are characteristics that are of even greater concern regarding her ability to meet Kristina's needs. These peculiar and unjustified thoughts reflect [the mother's] exceedingly fragile and exceedingly stressed perceptions that she is not capable of adequately caring for the child whom she delivered. [The mother] has frequently expressed that there is some problem with her child or that there is some physical defect in herself or her child. [The mother] has frequently contributed to a distressed state in her child. She has suggested dangerous or even potentially lethal interventions for Kristina. These each indicate a pervasive discomfort with her child, her role as a mother and a disruption in the mother-child relationship.
"The descriptions of [the mother's] care of her infant during her frequent visits suggests 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 [the mother] has formed a better understanding of or has developed any indications of an improving relationship with her child was presented. As [the mother] has moved from the acute distress and discomfort of the immediate post-partum period into her current physically settled and apparently emotionally settled state, she has demonstrated no better ability to care for or even to identify correctly her child's most simple and basic needs." Id., 14-15 (emphasis added).
The psychiatric evaluator noted the mother's lack of understanding and recognition of her pervasive disabling issues concerning her parenting of Kristina: "[The mother] is quite clear and comfortable with her persistent assessment that she has no emotional problem, no personality problem, no interpersonal problem and no need for psychiatric treatment. [The mother] has perceived herself as interacting with others who, for their own pathological reasons, have distorted the truth and caused her trouble through no fault of her own. [The mother] has no awareness that her own functioning has in any way impaired her ability to parent her child. She has no recognition of the impairments which have been described regarding her own functioning and her child care." Id., 15.
Such psychiatrist observed: ". . . Because of her psychiatric condition, [the mother] has a serious deficit in her ability to understand and empathize with another person. [The mother], on the basis of this evaluation, would not be predicted to be able to reliably care for a child. [The mother] has demonstrated no ability to alter her behaviors with or without understanding the reason, in order to become a more comfortable, effective, or understanding caretaker for her child. In my opinion, the prognosis for [the mother] to develop abilities in the future that she has shown no indication of beginning to develop after extended efforts is exceedingly poor. [The mother] has demonstrated a many years long pattern of disputing professional opinions and showing no discomfort regarding the accuracy of her own medical diagnoses even when disputed by a physician." Id.
The psychiatrist concluded that
(1) the mother was unable to meet in a minimally adequate way Kristina's needs "at this time";
(2) during her time with Kristina, she had "not begun to show such competence . . .;
(3) there was no need further to assess the mother's condition, because (a) treatment of an unacknowledged personality disorder was difficult, and (b) the mother "had demonstrated no ability to change her functioning on the basis of reasoning, advice, counseling, coaching or even the threat of the loss of a job or the loss of her child . . .";
(4) medication was not likely to offer significant benefit to the mother; and
(5) the mother had impairments, a "consistent and persistent disability," that were not "abating as [the mother] move[d] further from the post-partum period." Id., 16.
31. On September 27, 2003, the psychiatric evaluator observed a visit between Kristina and the mother. (Exhibit 5.) Such psychiatrist concluded that the mother "has continued to show serious impairments in the parent-child relationship." Id., 7. The psychiatrist had "great concern as to [the mother's] ability to resolve these parenting deficits." Id. He had grave concerns about the mother's "ability to raise Kristina successfully." Id.
32. One week later, on October 4, 2003, the mother wrote a letter to Governor Rowland, where she alleged that "legalized kidnapping was taking place" in Connecticut. (Exhibit 1, 24.) She referred to a "chain conspiracy." Id. She wrote that she intended to take "federal crime solving action." Id. At about this time the mother also contacted the police department in the city in which the hospital was located where Kristina was born to complain that certain hospital nurses lied about her mental condition, causing Kristina's removal from her care. Id.
33. Within a year of Kristina's birth, the mother "discontinued attending pediatric appointments . . ., stating to DCF that she would not get out of bed to drive to [the pediatrician's office] `just for an injection.'" Id., 30.
34. On March 1, 2004, the mother was observed to be, and she admitted to, videotaping Kristina's foster home. Id., 24. She admitted to DCF "that she sat in her car across the street watching the foster home every Thursday." Id. The maternal grandmother also inappropriately approached the foster mother at or near the foster mother's home. Id., 32. 33. On June 15, 2004, the mother and the father of Kristina's younger half-siblings went to the foster home and they "bang[ed] on the front and back doors shouting Kristina's name and ask[ed] where she was." Id., 24. The teenager who was home "was terrified of [such father's] behavior, believing he was going to enter the home." Id.
34. On March 8, 2005, approximately one month before the filing of the TPR petition, the mother, in response to DCF's assertion of "several specific instances of inappropriate parental behavior during visitation . . . became irrational and claimed none of the observed behaviors had occurred and that it was actually the assigned social worker who behaved in this way to Kristina." Id., 35. Also, the mother was resisting being treated by a psychiatrist and being placed on a medication program. Id., 35-36. Between the October 2002, birth of Kristina and the April 11, 2005, TPR petition, the mother was unsuccessful in therapy, including the court-ordered therapy she was ordered to attend, and she did not follow any recommended medication regime.
35. As of April 7, 2005, the date the TPR social study was prepared, to the best of DCF's knowledge and information, the mother was residing both at her parents' and her then boyfriend's home (the father of Kristina's two younger half-siblings). Id., 34. In violation of the specific steps, the mother refused to provide the boyfriend's address to DCF. Id. According to the mother, the boyfriend was unemployed and was receiving disability payments. Id. The mother reported that she also was unemployed and that her unemployment benefits had run out. Id. Thus, on April 11, 2005, the mother did not have stable employment or housing.
36. On the date of the filing of the TPR petition, the parent-child relationship between Kristina and her mother unfortunately was extremely poor. Id., 36-37. Kristina's therapist observed that ". . . the presentations of Kristina and [the mother] during an observed visitation are poor prognostic indicators for the long term health of this dyadic relationship.'" Id.
37. Such therapist also stated that Kristina experienced "anxiety, behavioral dysregulation and emotional disengagement in relation to visitation with her mother. Kristina's presentation both in affect and language are blunted during the time she participates in visitation with her mother." Id.
38. See also the factual findings set forth in pages 45-53, infra.
39. The court finds that DCF has alleged and proved, by clear and convincing evidence, that
(A) this court has jurisdiction over the matter and the parties;
(B) Kristina was previously adjudicated neglected;
(C) prior to filing its termination petition, DCF made reasonable efforts to reunify Kristina with the mother and the father through offers of and provision of services;
(D) the mother and the father were unable or unwilling to benefit from the offers of and provision of services to the point where either of them could be considered to be a parental resource for reunification; and
(E) because of her circumstances, problems and issues set forth in the evidence and in this decision, after Kristina was removed from her at the hospital where she was born, and after the neglect adjudication, the mother failed to achieve the degree of personal rehabilitation
(a) that encouraged the belief that prior to the filing of the TPR petition,
(b) that would encourage the belief that within a reasonable time after the filing of such petition, or
(c) that would encourage the belief within a reasonable time in the future, considering the age and needs of Kristina, she could assume a responsible position in the life of Kristina.C.G.S. SECTION 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. The mother was offered the following services, inter alia:
(i) Connecticut Resource Group;
(ii) Northwest Center for Mental Health;
(iii) Family Service of Greater Waterbury;
(iv) Jewish Family Services;
(v) UCONN Health Center Sleep Disorder Center;
(vi) Family Ties;
(vii) Wheeler Clinic;
(viii) Family Service of Greater Waterbury;
(ix) Bristol Hospital;
(x) Charlotte Hungerford Hospital;
(xi) Waterbury Youth Services; and
(xii) Waterbury Hospital Behavioral Health.
Kristina has been provided with foster care services, medical treatment, therapy services, transportation, supervised visitation and case management services.
2. Whether DCF has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980 as amended.DCF has made reasonable efforts to reunite the family. See 1. above.
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 November 8, 2002, the court issued specific steps for the mother, including:
*Keep all appointments set by or with DCF . . .
The mother did not keep all appointments set by or with DCF. She missed some visits and/or was late for some visits with Kristina because she overslept and had occasional confusion as to what day of the week it was. She missed an administrative case review. She declined to attend pediatrician appointments for Kristina. She declined to attend therapy for herself until she was specifically ordered by the court to do so. She failed to follow any medication regime. (See, e. g., exhibit 1, 40.)
Despite the evidence of her lack of cooperation with DCF, the mother believes, and she testified, that she worked with DCF to the best of her ability, and she stated: "I'm the one doing the cartwheels."
*Keep children's and your whereabouts known to DCF.
The mother did not comply. On April 26, 2004, she informed DCF that she was not living at her parents' home, but she would not give DCF her new address. She eventually returned to her parents' home. Id.
During the summer of 2004, DCF made unsuccessful attempts to contact the mother at her parents' home. Id. The maternal grandmother denied that she had knowledge of where the mother was living. Id.
During the pendency of the case, DCF repeatedly asked the mother for a consistent method of contact. Id. The mother denied knowledge of the address of her boyfriend's home. Id., 40-41. She refused to provide her cell phone number to DCF. Id., 41.
Shortly before the filing of the TPR petition, the mother refused to give DCF the address of such boyfriend with whom she still was residing. Id.
*Participate in counseling and make progress toward the identified treatment goals . . .
Although DCF referred the mother to multiple resources and providers, from November 2002, until May 2004, after she was ordered by the court on March 15, 2004, to do so, the mother did not engage in individual counseling. Id. If she were to have a chance of reunification, this period of time was crucial for the mother in which to act to avoid Kristina reasonably becoming bonded to her foster parents, but the mother was unable or unwilling to do so. For example, in June 2003, the mother attended an intake appointment at the Bristol Hospital Counseling Center, which recommended that she attend a partial hospitalization program. Id. The mother attended for one day and refused to return. Id. The mother testified that she did attend a session of group counseling at Bristol Hospital, but she felt that it "was the worst thing in the world," because she was sitting next to people with "real problems."
The mother admitted in her testimony that DCF paid for the therapist ordered by the court in March 2004.
In her testimony the mother admitted that she failed to engage in services during the crucial eighteen-month period after Kristina's birth from November 2002 through May 2004.
The mother "repeatedly told DCF and Family Service staff . . . that she did not need to be involved in therapy. She has repeatedly stated that her only problems are that her daughter was removed from her due to false allegations and that the child has continued to be kept from her due to a `conspiracy' of the Court, DCF, attorneys, court ordered evaluators and hospital staff and these people are the `crazy' ones. Her statements regarding a conspiracy continue to the present [April 7, 2005]." Id.
In February 2003, the first psychiatric evaluator opined because of her personality disorder that the mother would be resistant to and that she would not benefit from therapy. (Exhibit 4.)
This was confirmed by the mother on April 18, 2006, inter alia, when she sent an email to Governor Rell containing the following:
". . . simple made up accusations by . . . nurses from the hospital to DCF caused them to take my child . . . [Taking of children is] being done by an abuse of authoritative power, where we sit in closed kangaroo courts, and everything is just rubberstamped by the judges to lean towards the side of the State or DCF . . . I have never had any drug, alcohol . . . problems in my life. I am actually appalled by the fact that DCF was brought into my life . . . A meeting with you personally . . . is mandatory . . . that way you can meet my parents too . . . We are still . . . awaiting for the return of my children, and for the state to realize they made a true to life mistake, in judgment and in factual errors." (Exhibit 37, 2-3.)
The therapist to whom the mother went after she was ordered to obtain therapy reported to DCF after being released by the mother to do so that the mother "has difficulty comprehending the world and `fills in the blanks herself which is how she gets herself in trouble.' (Exhibit 1, 42.) The mother recognized that such therapist believed that she had not "benefitted from anything and that is reason for DCF to keep my children even longer away from me." (Exhibit 37, 3.)
Such therapist explained that people such as the mother "who need anti-psychotic medication the most are the least likely to take it." (Exhibit 1, 42.) For almost four years, the mother consistently refused to follow a continuous regimen of any medication, whether or not "anti-psychotic," including medication for the treatment of her narcolepsy, which she testified she has had "practically all of my life . . .," and which the neuropsychological evaluator in his testimony described as potentially life-threatening for her and any children in her care.
However, after the birth in 2006 of her third child, who is currently in the custody of DCF, the mother testified that she began to take Provigil to treat her narcolepsy and to minimize or avoid its effects, and she currently is taking it on a daily basis. Unfortunately, however, in her testimony the mother continued to deny that she needs such medication. She asserted that she does not have sleep attacks, or a severe level of narcolepsy, but she does get tired during the day and her mother, the maternal grandmother, thinks that it is normal. She stated that instead of having "textbook narcolepsy," she is just overtired. She did admit that the Provigil helps her to stay awake, and she no longer needs a nap between 1:00 and 2:00 p. m. in the afternoon.
After the filing of the TPR petition, the mother continued to resist mental health treatment. (Exhibit 24.) She testified that she currently is not seeing anyone for therapy or psychiatric treatment. She stated that if she were diagnosing herself she would conclude that there is "no way" she needs therapy. Although she believes that, the accumulated weight of the opinions of the professionals involved in the case would cause her to be willing to "look into it."
After a September 26, 2006, evaluation, the psychologist who performed the evaluation determined that the mother's "cognitive deficits at present are such that it is not recommended she care for any of her children independently." (Exhibit 9, 21 (fax numbered page 22)).
*Cooperate with court-ordered evaluations or testing and follow recommendations.
The mother generally cooperated with court-ordered evaluations and testing, but she was unwilling to follow recommendations. (Exhibit 1, 45-46.)
The mother did testify at trial that she was taking a medication to treat her narcolepsy, but prior to trial DCF did not have this information and was thus unable to confirm that the mother was doing so as prescribed.
The mother testified that she went to all scheduled court-ordered evaluations and that she was open and honest with the evaluators.
*Sign releases authorizing DCF to communicate with service providers to monitor attendance, cooperation and progress toward identified goals, and for use in future proceedings before this Court.Prior to the filing of the TPR petition, and thereafter, the mother did not comply with this expectation. Id., 46-47.
*Secure and/or maintain adequate housing and legal income.
For a number of years prior to the birth of Kristina, thereafter, through the April 11, 2005, filing of the TPR petition, and thereafter through the present, the mother has not had her own residence. At various times since the birth of Kristina, she has resided with her parents, with Kristina's father, and/or with the father of Kristina's two younger half-siblings.
Since Kristina's birth, the mother has not maintained steady employment. She currently is unemployed.
In December 2006, the father of Kristina's two younger half-siblings lost his employment at a supermarket because he insisted on going to a rock concert instead of working his scheduled shift.
*No substance abuse.
DCF has no knowledge of any substance abuse by the mother during her pregnancy with Kristina or thereafter.
*No further involvement with the criminal justice system.
On or about October 10, 2006, the mother was arrested in connection with an alleged assault of the DCF case worker assigned to the family.
*Visit the children as often as DCF permits:
Until visitation was suspended after the October 10, 2006, incident, although she was tardy and although she occasionally missed visitation because of her occasional confusion, the mother generally visited as scheduled. Id., 48-50.
However, the mother behaved inappropriately to Kristina by not feeding her appropriately, by saying negative and inappropriate things in front of her and to her, and by frightening and upsetting her. Id., 28-29, 42-44.
Kristina is greatly relieved that she does not have to visit with the mother. For several months before such visitation was stopped, Kristina was resistant to such visitation, and she did not want to attend.
4. The feelings and emotional ties of each child with respect to their 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.Kristina is not bonded to the mother in a parent-child way. She is greatly bonded to the foster parents and their family, the only family with whom she has lived.
5. The age of the child.
Kristina is four 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.Unfortunately, as set forth throughout this memorandum of decision, the mother has not been able to adjust her circumstances, conduct, behavior or conditions to make it in the best interest of Kristina to return to her in the foreseeable future.
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 has been prevented from maintaining a relationship with Kristina for any reasons other than the predictable consequences of her actions, omissions and behavior.The mother did not provide specific information concerning her current or past economic circumstances.
DCF HAS PROVED, BY CLEAR AND CONVINCING EVIDENCE, THE GROUND B(i) ALLEGATIONS OF SUCH PETITION CONCERNING THE MOTHER.
Because of her circumstances, problems and issues set forth in this decision, after Kristina was removed from her at the hospital where she was born, and after Kristina was adjudicated neglected, the mother failed to achieve the degree of personal rehabilitation
(a) that encouraged the belief that prior to the filing of the TPR petition,
(b) that would encourage the belief that within a reasonable time after the filing of such petition, or
(c) that would encourage the belief, within a reasonable time in the future, considering the age and needs of Kristina, she could assume a responsible position in the life of Kristina.
THE BEST INTEREST OF KRISTINA:
The court has considered the best interest of Kristina. The court has considered whether it is in the best interest of Kristina to be returned to the mother, including whether the mother reasonably could be expected and relied upon to provide the safe, secure, nurturing, stable, violence-free, and permanent environment idealized in the statutes and case law. The court has considered the evidence presented concerning Kristina's situation and circumstances at the time of and prior to the filing of the neglect petition, the TPR petition, her current situation, needs and circumstances, the length of time she has been out of the mother's care, custody and control and in foster care, and the reports of her positive growth and progress after being removed from the mother's care, custody and control at the hospital where she was born and after being placed with her current foster parents and family.
The court finds, by clear and convincing evidence, that it is in the best interest of Kristina, and that it is necessary for her growth, development, safety, security, stability, and permanency, that the rights of the mother be terminated. The father previously has consented to the termination of his parental rights.
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, that DCF has proved Ground B(i), failure to rehabilitate. The court recognizes the consent of the father to the termination of his parental rights.
Having considered Kristina, her age, experiences, needs, developmental requirements, sense of time, her current lack of a relationship with the mother, her positive relationship with the foster parents and family, her need for safety, security, stability and permanency, the mother's failure to rehabilitate, the lack of any likelihood of change or improvement in the foreseeable future, and the general totality of circumstances, the court finds that it is in the best interest of Kristina to terminate the parental rights of the mother and the father. Because of the mother's current circumstances and past history, and the length of time it would take her in the best of circumstances, to become able to be a responsible full-time parent, it is not in Kristina's best interest to be returned to the mother at this time or at any time in the foreseeable future.
Accordingly, it is hereby ORDERED that the parental rights of the mother and the father to Kristina are hereby terminated. The commissioner of the department of children and families is appointed as Kristina's statutory parent. The initial status report concerning Kristina shall be submitted, as required, within thirty days hereof. Quarterly reports and annual permanency plans shall be submitted as required in accordance with statutory requirements.