Opinion
July 8, 2005
MEMORANDUM OF DECISION
On August 13, 2004, the petitioner, the Commissioner of the Department of Children and Families, ("DCF"), filed a petition pursuant to C.G.S. § 17a-112, et seq. to terminate the parental rights of Nicole M. and Christian M. to their children Marcus M., Christiana M. and Dezmond J. Both respondent mother and respondent father contest termination of their parental rights. Trial of this matter took place before this court on April 28 and 29, 2005 at the Regional Child Protection Session at the Middlesex J.D. For the reasons stated below, the court finds in favor of the petitioner.
The sole statutory ground alleged against both respondents was that the children, Marcus, Christiana and Dezmond, were found in a prior proceeding to have been neglected or uncared for and the parents failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the ages and the needs of the children, they could assume a responsible position in the lives of the children (C.G.S. § 17a-112(j)(3)(B)(i)).
On March 11, 2002, DCF filed neglect petitions on behalf of Marcus and Christiana alleging that the children were denied proper care and attention and permitted to live under conditions injurous to their well being based on exposure to domestic violence, substance abuse and criminal conduct of the parents. On June 12, 2002, Marcus and Christiana were adjudicated as neglected and placed under an order of protective supervision for a period of six months (Mack, J.). On June 24, 2002, a 96-hour administrative hold was invoked by DCF on Marcus and Christiana because they were found at mother's home unattended when they were 2 1/2 and 1 year old. On June 25, 2002, orders of temporary custody ("OTCs") were issued by the court (Mack, J.). On January CT Page 11060-b 22, 2003, the disposition was modified from protective supervision to commitment (Mack, J.). An OTC was issued with regard to Dezmond J. On June 16, 2003 (Foley, J.) and sustained on June 23, 2003 (Mack, J.). On January 8, 2004, Dezmond was adjudicated neglected and committed to the care and custody of DCF (Driscoll, J.). On June 16, 2004, commitment was maintained until further order of the court and mother's objection to DCF's permanency plan of termination of parental rights and adoption for all three children was consolidated with the TPR trial (Turner, J.). On August 13, 2004, the petition for termination of parental rights was filed.
The court finds that notice of this proceeding has been provided in accordance with the provisions of the Practice Book. The court further finds that the Child Protection Session of the Superior Court, Juvenile Matters Division, has jurisdiction over the pending matter and that no action is pending in any other court affecting custody of the child.
"The termination of parental rights is defined as the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his [or her] parent . . . [As such, it] is a most serious and sensitive judicial action." (Citation omitted; internal quotation marks omitted.) In re Jonathan M., 255 Conn. 208, 231, 764 A.2d 739 (2001); In re Bruce R., 234 Conn. 194, 200, 662 A.2d 101 (1995).
The termination of parental rights is governed by statute. C.G.S. § 17a-112. In a proceeding for termination of parental rights, the petitioner must prove a ground alleged in the petition, as of the date of filing the petition or the last amendment, by clear and convincing evidence. In re Joshua Z., 26 Conn.App. 58, 63, 597 A.2d 842 (1991), cert. denied, 221 Conn. 901, 599 A.2d 1028 (1992); In re Teresa S., 96 Conn. 18, 29, 491 A.2d 355 (1985); Practice Book § 32a-3(b), 35a-7. Only one ground need be established for the granting of the petition. In re Juvenile Appeal (84-BC), 194 Conn. 252, 258, 479 A.2d 1204 (1984); In re Karrlo K., 44 Conn.Sup. 101, 106, 669 A.2d 1249 (1994), aff'd, 40 Conn.App. 73, 668 A.2d 1353 (1996).
Termination of parental rights trials proceed in two stages: the adjudication and the disposition. The adjudicatory stage invokes the issue of whether the evidence presented established by clear and convincing evidence the existence of one or more of CT Page 11060-c the statutory grounds as of the date the petition was filed or last amended. In re Juvenile Appeal (84-AB), 192 Conn. 254, 264, 471 A.2d 1380 (1984). "Pursuant to Practice Book § 33-3(a), [now P.B. § 35a-7) in deciding the adjudicatory phase of the hearing for the termination of parental rights, to trial court's inquiry is limited to the events and facts preceding the filing of the petition for the termination of parental rights [or last amendment]." In re Daniel C., 63 Conn.App. 339, 357, 776 A.2d 487 (2001). However, "[i]n 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." In re Stanley D., 61 Conn.App. 224, 230, 763 A.2d 83 (2000) (emphasis in original); see In re Latifa K., 67 Conn.App. 742, 748, 789 A.2d 1024 (2002).
If at least one pleaded ground to terminate is found, the court proceeds to the disposition stage. The court must consider whether the facts, as of the last day of trial, establish, by clear and convincing evidence, that termination is in the child's best interest.
Procedurally, the evidence as to both adjudicatory and dispositional phases is heard at the same trial without first determining if the state has proven a statutory ground for adjudication before consideration of the dispositional question. In re Eden F., 250 Conn. 674, 688-89, 741 A.2d 873 (1999); In re Juvenile Appeal (84-BC), 194 Conn. at 258; State v. Anonymous, 179 Conn. 155, 172-73, 425 A.2d 939 (1979); In re Quanitra M., 60 Conn.App. 96, 102, 758 A.2d 863, cert. denied, 255 Conn. 903, 762 A.2d 909 (2000); In re Emmanuel M., 43 Conn.Sup. 108, 113, 648 A.2d 904, (1993), aff'd, 35 Conn.App. 276, 278, 648 A.2d 881, cert. denied, 231 Conn. 915, 648 A.2d 151 (1994); In re Nicolina T., 9 Conn.App. 598, 602, 520 A.2d 639, cert. denied, 203 Conn. 804, 525 A.2d 519 (1927).
I. FACTS
At trial, the petitioner introduced the social study, other documentary evidence, and the testimony of DCF social workers James Jutras, Sarah DeCecco, and Chela Verastegui; Jose Ayala, substance abuse counselor; John Reed of United Services; and Special Agent Brian Martineau, Naval Criminal Investigative Service. Respondent mother, Nicole M., testified on her own CT Page 11060-d behalf. The child's attorney participated fully, but introduced no exhibits or testimony. The credible evidence admitted at trial supports the following facts by clear and convincing evidence:
A. Respondent Mother — Nicole M.
Respondent mother, Nicole M., was born June 13, 1978. She was raised in Willimantic by her mother and has no contact with her biological father. Throughout her childhood, her mother was addicted to drugs and alcohol. Nicole M. therefore had a turbulent childhood and was unable to complete her high school education. She dropped out of the Willimantic high school in the tenth grade and, at sixteen, moved to Providence, Rhode Island with her boyfriend, Juan V. She resided in Rhode Island for three years and gave birth to her first child, Jayden, November 7, 1997. Her relationship with Juan V. ended shortly after Jayden's birth. Juan V. is whereabouts unknown and has no contact with Jayden.
In 1999, Nicole M. became involved with respondent father, Christian M. They were involved in a domestic violence incident in February 1999 while Jayden was present during which several items in the home were broken. At mother's request, maternal grandmother took Jayden. When grandmother returned, Nicole became angry and threatened to kill her. Mother was arrested and convicted of breach of peace in connection with the incident for which she paid a fine. Nicole and Christian's relationship resulted in the birth of three children, Marcus M., born January 1, 2000, Christiana M., born April 9, 2001 and Dezmond J., born March 4, 2003.
While father was incarcerated, mother had a relationship with Rafael Reyes from approximately September 2002 through November 2003. Although mother initially believed Reyes was the father of Dezmond, a paternity test established that Christian M. is Dezmomd's father.
On March 11, 2002 DCF filed neglect petitions with regard to Marcus and Christiana alleging that mother exposed them to domestic violence, substance abuse, criminal activity, medical and emotional neglect and unsafe conditions. The petitions alleged that mother exposed the children to inappropriate caretakers, who were known drug users, and that she allowed the caretakers to transport the children without proper safety seats. The petitions also alleged that mother had been arrested for operating a motor vehicle without a license and registration and possession of a controlled substance. The petitions further alleged that father was incarcerated on charges which included operating a drug factory. On June 12, 2002, Marcus and Christiana were adjudicated neglected and placed under protective supervision for six months. Father was to have supervised CT Page 11060-e visitation only. A short time later, on June 24, 2002, the social worker discovered Marcus and Christiana, then 2 1/2 and 1 year old respectively, home alone. They were immediately removed from mother's care on a 96-hour hold and an OTC was subsequently issued and sustained. Marcus and Christiana were committed to DCF January 22, 2003. Dezmond was born March 4, 2003 and remained in mother's care initially.
On June 13, 2003 mother and her boyfriend Rafael Reyes were arrested during a drug raid by the Statewide Narcotics Task Force. The search warrant was executed by the Statewide Narcotics Task Force Office following two controlled buys out of the residence shared by mother and Reyes. On June 13, 2003, when the officers were denied entry into the residence after knocking, they had to forcibly enter. Because the door to the residence was reinforced with steel brackets and 2 x 4s nailed together, the officers had to use a battering ram. According to Special Agent Martineau, they found Reyes within the residence, along with one bag of cocaine, a stun gun, and $14,500 in cash in a hidden compartment with a false door in mother's bedroom. As Agent Martineau entered the residence, he saw Dezmond, then 2 1/2 months old, on the couch with a bag of cocaine in plain view on the coffee table in front of the baby. Mother, who was not home when the search began, arrived home during the course of the search and was arrested along with Reyes.
According to mother, Reyes fled the country in order to avoid prosecution on the charges. Following mother's arrest a 96-hour hold was invoked with regard to Dezmond. In connection with the drug charges, mother was convicted of sale of illegal drugs and possession of narcotics and sentenced to five years incarceration, suspended, and three years probation. On February 17, 2005, mother was convicted of operating a motor vehicle while under suspension and sentenced to 60 days in jail. In addition to the convictions discussed above, mother's lengthy criminal history also includes convictions for forgery in the second degree, probation violation, possession of marijuana, two convictions for operating while under suspension, two convictions for failure to appear, breach of peace and additional convictions for sale of illegal drugs and possession of narcotics. Mother has had sporadic employment history working at two pizza restaurants and at two bars.
B. Respondent father, Christian M. CT Page 11060-f
Respondent father, Christian M., was born on March 26, 1978. Father has a lengthy criminal history including arrests for assault, sexual assault, risk of injury, possession of marijuana, operating a drug factory, interfering/resisting arrest, breach of peace, disorderly conduct, larceny, criminal mischief, illegal use of a fake gun, driving while under suspension, criminal trespassing and failure to appear. He has been released from incarceration, and is on probation for sixteen years as a result of his felony conviction for sexual assault of a minor. As a condition of his probation he is not permitted to have unsupervised contact with the child he had as a result of the offense. Since his release from incarceration he has been working and now resides with his sister in housing that is not suitable for the children due to DCF involvement with the family residing in the home.C. Specific Steps
Specific steps as to Marcus and Christiana were issued by the court and signed by both mother and father on June 12, 2002, July 1, 2002, and on January 22, 2003. As to Dezmond, specific steps were issued on June 16, 2003 for mother and father, and issued and signed by mother on January 8, 2004. Respondents' specific steps required them to do the following: keep all appointments set by or with DCF; cooperate with DCF home visits, announced or unannounced and visits by the children's court-appointed attorney and/or guardian ad litem; keep their whereabouts known to DCF, their attorneys, and the attorney for the children; participate in individual, family and parenting counseling to address treatment goals including anger management and relationship issues; accept and cooperate with in-home support services referred by DCF; submit to substance abuse assessment and follow recommendations made regarding treatment; successfully complete substance abuse treatment, including inpatient-treatment if necessary, and follow recommendations regarding after-care treatment, including relapse prevention; submit to random drug testing; cooperate with recommended service providers including sequential hair toxicology; cooperate with court-ordered evaluations and testing; cooperate with any restraining/protective order and/or other appropriate safety plan approved by DCF; sign releases; secure and maintain adequate housing and legal income; no substance abuse; have no further involvement with the criminal justice system; immediately advise DCF of any changes in the composition of the household; and visit with the children as often as DCF permits. CT Page 11060-g
With regard to compliance with the specific steps, mother has kept the majority of her appointments with DCF, but has missed home visit appointments. She has failed to participate in mental health and substance abuse counseling. She has not been consistent in attending her weekly counseling appointments at United Services and stopped attending altogether in November 2003. Mother was referred to United Services again in March 2004 for a substance abuse evaluation, hair toxicology and counseling, however, she did not attend the appointment she made for May 3, 2004 and has not engaged in substance abuse or mental health counseling services. Mother has kept her whereabouts known to DCF. Mother has been resistant to substance abuse and mental health counseling and has been inconsistent in substance abuse evaluations and treatment. Mother has completed a parent education program through EastConn Visitation Center.
Specifically with regard to substance abuse, mother was referred on at least eleven occasions for substance abuse services. Mother was admitted to treatment at New Perceptions in August 2002. Hair toxicology results in August 2002 were positive for cocaine, amphetamines, MDMA (ecstasy) and marijuana during the preceding months (Ex. 3 and 4) and were positive for cocaine again for the months preceding November 2002. (Ex. 5.) During this time, mother was pregnant with Dezmond who was born in March 2003. Jose Ayala of New Perceptions testified that mother's attendance was poor and that when she did attend, her participation and attitude were poor and that she was not engaged in trying to find a solution to her problem. Mother did attend some individual sessions, but did not attend group sessions, Ayala testified that mother was resistant to treatment and that clients needed to participate and work with the program in order to benefit from their services. Mother was discharged from New Perceptions due to her resistance to the program and her report that she was going to be incarcerated for driving while her license was under suspension. Although Ayala testified that the program could have accepted mother back after her incarceration, he stated that it was the recommendation of the team at New Perceptions that mother needed to attend a day treatment program or an in-patient program which could accommodate mother and the children. Another referral was made for New Perceptions in June 2004, but mother did not attend.
Mother received services at United Services, Inc. in Willimantic from March 29, 2003 through November 11, 2003. Her CT Page 11060-h treatment plan required that she attend weekly individual and group sessions. Mother attended seven individual sessions, sporadically, and did not join a group. According to her clinician, mother made slight progress toward her goals. She did attempt to engage and was able to gain some insight about negative patterns in relationship choices. Hair toxicology of June 19, 2003 and eight urine screens conducted by United Services from April through November 2003 were negative for drugs. Although there were additional attempts to schedule additional appointments after November 11, 2003, mother did not respond. Mother was discharged due to lack of engagement and inconsistent attendance. She has not participated in any services since November 2003.
As set forth above, mother was convicted of sale of narcotics and possession of narcotics in June 2003 following the execution of a search warrant by the Statewide Narcotics Task Force Office. Mother failed to attend scheduled hair toxicology appointments on May 3, 2004, June 14, 2004 and June 21, 2004. On June 25, 2004, mother admitted to DCF that her test would be positive for marijuana. Mother told DCF that DCF should be concerned with cocaine and heroin use and that marijuana use by a parent was "no big deal." Nevertheless, DCF continued to offer services and in December 2004, when DCF offered mother services, she stated that she was "done" with services. In April 2005, when mother was released from incarceration, she told DCF that she was willing to do whatever it takes to get her children back. She was told to come early to the next visit to discuss what would be required, but did not do so. At the end of the visit the social worker wrote down the names of service providers in Hartford.
Mother has maintained housing and employment though her employment was not verifiable as mother was paid "under the table" as a bartender. Mother has continued her extensive involvement with the criminal justice system despite the specific steps, including her arrest and convictions following the Statewide Narcotics Task Force drug raid on her apartment. Mother is currently on probation until April 2007 and will not get her driver's license reinstated until 2009. Mother has failed to keep DCF informed of individuals residing in her home and has allowed people with substance abuse involvement, including Mr. Reyes, to reside in her home.
Mother has visited with the children regularly, although on many occasions she has been late. She completed a parent CT Page 11060-i education and visitation program though the EastConn visitation center in February 2003 and currently has a two-hour visit once per week with the children. Maternal grandmother and other relatives frequently attended the visits with mother, which created an environment overwhelming to the children. Parents were also frequently taking calls on their cell phones during visits. In February 2005 DCF ultimately initiated a service agreement with mother to provide structure for the visits. The agreement provided for no cell phone use during visits and no foul language. Mother was required to arrive on time, and bring no other family members. At the visit immediately following the service agreement between mother and DCF, Marcus walked away from the park where they were visiting and was found talking to his aunt on the cell phone. When DCF pointed out to mother that this was in violation of the agreement, she became explosive and aggressive. She did not indicate an understanding of the reasons why the children should not be on the cell phone with other family members during mother's limited visitation. Mother had difficulty controlling and engaging the children during visitation. Mother missed a few visits due to vacation and transportation issues after she moved to Hartford. DCF worker Verastegui testified that she did not observe any improvement in mother's parenting skills even though Verastegui constantly tried to assist her and tried to provide advice. Verastegui testified based on her experience that mother would need at least an additional six to eight months or a year to show any improvement in her parenting skills. Verastegui believed that under the circumstances present in this case, that was too long a time frame for the children to have to wait to attempt reunification.
With regard to father's compliance with specific steps, he has kept appointments with DCF. He receives services through the Office of Adult Probation and has been cooperative with his conditions of probation. Father has not always kept his whereabouts known to DCF. He receives substance abuse and mental health counseling through probation. According to father's probation officer, father has cooperated with substance abuse assessment since his release from incarceration. There have been no recommendations for treatment nor any indication of current substance abuse. With the exception of one positive urine screen for marijuana on May 16, 2003, father's drug screens have been negative. Father has cooperated with restraining and/or protective orders and any appropriate safety plan to avoid domestic violence incidents and he has signed all releases. He has maintained adequate housing and legal income. His housing, CT Page 11060-j however, would not be appropriate for the children. Father has not had further involvement with the criminal justice system but will be on probation until 2020. Father has not visited with the children consistently since his release from incarceration in May 2003.
D. The Children 1. Marcus M.
Marcus M. was born on January 1, 2000. Marcus resided with mother for the first 2 1/2 years of his life. Since then, he has had six different placements. At one time he was placed along with his sister with his maternal great aunt who was notable to continue to care for the children due to her own medical situation. He has always resided with Christiana with whom he is strongly bonded. He has resided at his current pre-adoptive foster placement with Christiana since April 2003 and is strongly bonded with his foster parents. The foster parents are ably meeting all of Marcus's medical, educational, and emotional needs. It appears that Marcus may need some support when entering school. Marcus attends TVCCA Head Start daily and has individual counseling through Salmon River Counseling on a weekly basis to address his oppositional and aggressive behavior. Marcus has been documented as hitting teachers and other children at TVCCA. Marcus has a difficult time following directions and being redirected. Marcus has been potty trained, but has a history of defecating in his pants, generally on days when he has visits with his biological parents. He has been participating in a weekly social skills group through United Community and Family Services for three months as of the date of the social study. He visits with mother, father and Dezmond once a week for two hours. Maternal grandmother also regularly attends visitation twice a month for one hour.
2. Christiana M.
Christiana M. was born April 9, 2001 at Windham hospital. She was born healthy and resided with her mother for the first year of her life. She is strongly bonded with Marcus, with whom she has always resided. The foster parents are meeting all of her needs. Christiana has asthma for which she received daily Nebulizer treatments. She is enrolled at TVCCA Head Start. Christiana is beginning to exhibit some of the same behavioral difficulties displayed by Marcus. She visits with mother, father CT Page 11060-k and Dezmond once a week for two hours. Maternal great aunt has an ongoing relationship with foster parents of Christiana and Marcus and will continue to visit with the children although she cannot be a placement resource for them. She has informed DCF that she believes it is in the best interest of the children to be adopted and has given up on mother as she does not believe mother can rehabilitate herself.
3. Dezmond J.
Dezmond J. was born March 4, 2003 at Windham hospital. He was healthy at birth with no concerns noted. He tested negative for substances at birth despite the fact that mother tested positive for cocaine during the first six months of her pregnancy. Dezmond resided with mother and Rafael Reyes until June 16, 2003 when he was placed in foster care due to mother's arrest on drug charges. Dezmond has been in the same foster home since his placement in DCF care. His foster parents are meeting all of his physical, medical, and emotional needs and have stated that they are willing to adopt him. Dezmond is medically up to date and developmentally on target. He visits with his parents and siblings weekly.
E. Testimony of Respondent Mother
Respondent mother testified on her own behalf. She stated that she did not enter into treatment at New Life or the Thames Valley programs which were in-patient programs where she could have stayed with her children because she did not want to give up her lease. She stated that she understood that the programs required the applicants to be homeless in order to be accepted into the programs. She also testified that some of the programs were designed for heroin addicts and prostitutes and she felt they were a waste of time for her.
She indicated that she was willing to undergo counseling if it would help her, but that she was not addicted to marijuana and that her use of drugs did not impair her ability to care for her children. She stated that her main problem in life was not having a driver's license.
II. ADJUDICATION
The only ground alleged in the petition as to both respondent mother and father is parental failure to rehabilitate. The CT Page 11060-l petitioner is required to prove this ground by clear and convincing evidence, In re Baby Girl B., 224 Conn. 263, 618 A.2d 1 (1992).
A. Location and Reunification § 17a-112(j)(1):
In order to terminate parental rights, DCF must prove, by clear and convincing evidence, the statutory element requiring "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 unable or unwilling to benefit from reunification efforts provided such finding is not required if the court has determined at a hearing . . . that such efforts are not appropriate." C.G.S. § 17a-112(j)(1). "Although [n]either the word reasonable nor the word efforts is . . . defined by our legislature or by the federal act from which the requirement was drawn [r]easonable efforts means doing everything reasonable, not everything possible." (Internal quotation marks omitted; citation omitted.) In re Mariah S., 61 Conn.App. 248, 255, 763 A.2d 71 (2000).
DCF made substantial efforts to reunify in this case. Throughout DCF's involvement, numerous referrals were made to service providers who could help respondents address substance abuse issues and parenting. Although mother attended a number of programs, she was not able to benefit from the services provided. Visitation was provided and facilitated on a regular basis despite many transportation problems. Since the children were removed from mother's care, DCF has continued to facilitate visitation and continued to provide referrals for respondents. In short, the court finds by clear and convincing evidence that DCF made reasonable efforts to reunify in this case.
Father has not played an active role in the lives of the children due to his incarceration and although he has visited with them since his release from incarceration in May 2003, he has not expressed a desire to have the children placed with him. He has not taken advantage of the services offered and has been unable or unwilling to benefit from them. Under all the circumstances, DCF's efforts at reunification were reasonable.
B. Parental Failure to Rehabilitate — § 17a-(j)(3)(B)(i)
The petitioner alleges that respondent mother and father's parental rights should be terminated because they have failed to CT Page 11060-m achieve rehabilitation within the meaning of C.G.S. § 17a-112(j)(3)(B). Respondents counter that they have made sufficient progress in rehabilitation to make it reasonably foreseeable that they will be able to resume a responsible role in the children's lives. As Marcus and Christiana were found to be neglected on June 12, 2002, and Dezmond was found to be neglected on January 8, 2004, the critical issue for this court is whether the respondents have achieved rehabilitation sufficient to render them able to care for the children. The court finds this issue in favor of the petitioner.
Section § 17a-112(j)(3)(B) provides that parental rights may be terminated by the Superior Court as to "the parent of a child who (i) has been found by the Superior Court to have been neglected or uncared for in a prior proceeding, or (ii) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and such parent 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 . . ."
"`Personal rehabilitation as used in [Section 17a-112] refers to the restoration of a parent to his or her former constructive and useful role as a parent . . . [The statute] requires the trial 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 [within a reasonable time] she can assume a responsible position in her child's life.' (Citations omitted; internal quotation marks omitted.) In re Eden F., [ 250 Conn. at 706] . . . [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. (Internal quotation marks omitted). In re Shyliesh H., [56 Conn.App.] 167, 180, 743 A.2d 165 (1999)]." In re Sarah Ann K., 57 Conn.App. 441, 448, 749 A.2d 77 (2000). See also In re Ashley S., 61 Conn.App, 658, 665, 769 A.2d 718, cert. denied, 255 Conn. 950, 269 A.2d 63 (2001); In re Amneris P., 66 Conn.App. 377, 384-85, 784 A.2d 457 (2000).
The court finds by clear and convincing evidence that neither respondent has achieved a sufficient degree of rehabilitation as would encourage the belief that within a reasonable time, considering the ages and needs of the children, they could assume a responsible position in their lives. See In re Daniel C., 63 Conn.App. at 354; In re Ashley S., 61 Conn.App. at 665; In re Sarah Ann K., 57 Conn.App. at 448.
Although specific steps were issued to assist respondents in achieving rehabilitation, evidence clearly and convincingly indicates that they failed to fulfill them in a number of significant measures. As described above, respondent mother had not successfully completed any substance abuse program despite a lengthy period of time in which to do so and despite trying a CT Page 11060-n number of different programs. Marcus and Christiana were removed June 24, 2002 when they were found home alone shortly after they were placed under an order of protective supervision. Later that year, while mother should have been engaged in substance abuse treatment and counseling, she tested positive for drugs a number of times while pregnant with Dezmond. The following year, after she gave birth to Dezmond and was given the opportunity to demonstrate that she could appropriately care for her newborn, she was arrested and convicted for sale of narcotics following a drug raid of her apartment. During the search of her apartment 2 1/2-month-old Dezmond was found on a couch next to a table on which drugs were located. Mother's attempts at drug treatment at New Perceptions and United Services both ended unsuccessfully. Later, in June 2004, following another year of failed drug treatment, mother admitted to DCF that any drug test administered at that time would be positive for marijuana. She repeatedly missed appointments for hair toxicology and/or drug screens and told the social worker on June 24, 2004 that she missed a hair toxicology appointment because she knew it was going to be positive for marijuana use and did not see the point. After mother moved to Hartford in July 2004, she received a referral to the Wheeler Clinic. She missed her first appointment and attended the second. At the second appointment, she was scheduled for a urinalysis, hair toxicology and an evaluation. Because they were unable to do all three, mother left, refusing to have even the urinalysis done that day. Father has not expressed a desire to have the children placed with him and his residence is not appropriate for the children.
The court concludes by clear and convincing evidence, that as of the adjudicatory date of August 13, 2004, respondents had not brought themselves into a position in which they could provide adequate care for the three children. Mother continued to struggle with substance abuse and did not benefit from services. Mother refused to take the drug screens on occasion saying they would be positive for marijuana. Because of her refusal to have the drug screen, however, whether or not she was using other substances including cocaine and ecstasy (as she had used in the past) remains unknown. While continuing a visiting relationship, father demonstrated neither the ability nor the desire to provide day to day for the children.
The court must also consider whether events after the adjudicatory date establish "a degree of rehabilitation that is sufficient to foresee that the parents may resume a useful role CT Page 11060-o in the child's life within a reasonable time." In re Stanley D., 61 Conn.App. at 230; In re Latifa K., 67 Conn.App. at 749-50 (acknowledging that the court could take facts into account from beyond the adjudicatory period in making its decision in the adjudicatory phase with regard to whether the degree of rehabilitation was sufficient to foresee that the parent may resume a useful role in the child's life within a reasonable time). Mother's conduct after the adjudicatory date does not show improvement. She continued to have involvement with the criminal justice system acquiring new arrests and was incarcerated in February 2005.
She also stated in December 2004 that she was "done" with services. While she apparently changed her mind upon her release from custody, she then did not follow through with recommendations made by DCF. Mother was also unable to comply even with the service agreement for visitation entered into as recently as February 2005, which was designed to help improve the quality of her visitation time with her children.
Rehabilitation must be foreseeable within a reasonable time. In re Sheila J., 62 Conn.App. 470, 479-80, 771 A.2d 244 (2001). "What constitutes a reasonable time is a factual determination that must be made on a case-by-case basis." In re Stanley D., 61 Conn.App. at 231 (quoting In re Michael L., 56 Conn.App. 688, 694, 745 A.2d 847 (2000)). DCF worker Verastegui testified that mother would need at least six to eight months to a year before she would be able to improve her parenting skills. Marcus and Christiana have been in DCF care for almost three years and Dezmond has been in care since he was 2 1/2 months old. Here, for children who now have the stability of wonderful foster homes and foster parents who would like to adopt them, the time needed for rehabilitation of respondent mother even under the best of circumstances is not reasonable. And in this case, rehabilitation itself remains contingent on numerous factors, including continued counseling and substance abuse treatment, and of course, mother's denial of the need for continued substance abuse treatment renders the likelihood of her actually receiving and benefitting from additional treatment extremely remote. Moreover, respondents have had several years to accomplish such rehabilitation while the children remained in DCF care.
At the time of trial, respondent father had made some gains in his ability to manage his own life in that he was not incarcerated and was working. He did not, however, have CT Page 11060-p appropriate housing for the children and had not completed a parenting course at Madonna Place. Father has spent a considerable period of the children's lives incarcerated and will be on probation for many years. Mother has not made significant gains in managing her own life in that she had just been released from incarceration in April 2005. The court finds that neither father nor mother is in a position to provide day-to-day care for the children or to assume a useful role in their lives and that they have not achieved rehabilitation as would encourage the belief that they will be in such a position within a reasonable time. Thus at the time of trial, respondents had not rehabilitated to the point where they were in a position to play a constructive role in the day-to-day care of the children.
The court is mindful that parents are not required to be "able to assume full responsibility for a child, without the use of available support programs." 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); In re Migdalia M., 6 Conn.App. 194, 203, 504 A.2d 533, cert. denied, 199 Conn. 809, 508 A.2d 770 (1986). The fact that parents require continued counseling and treatment is not the basis of the court's determination that they have not sufficiently achieved rehabilitation. See In re Jessica B., 50 Conn.App. 554, 564, 718 A.2d 997 (1998) (trial court's finding that respondent had failed to achieve rehabilitation was properly based on her inability to meet court-approved expectations, and not on her mental retardation); In re Jessica B., 51 Conn.App. 667, 672-74, 723 A.2d 356 (1999) (trial court properly found a failure to rehabilitate); In re Nicolina T., 9 Conn.App. at 606 (trial court terminated parental rights not because of mental condition, but because of an inability to function as a parent). At the time of trial, parents were still not in a position to begin reunification, even with support in place.
In assessing rehabilitation, "[t]he critical issue is whether the parent has gained the ability to care for the particular needs of the child at issue." In re Mariah S., 61 Conn.App. at 261; accord, In re Gary B., 66 Conn.App. 286, 292, 784 A.2d 412 (2001); In re Amneris P., 66 Conn.App. at 384-85. The issue is not whether respondent has improved his ability to manage his own life, but rather whether he has gained the ability to care for the particular needs of the children. In re Shyliesh H., 56 Conn.App. at 180; In re Sarah Ann K., 57 Conn.App. at 448. Marcus and Christiana do have specialized needs and have serious behavioral difficulties including aggressive and oppositional CT Page 11060-q behavior. Dezmond is an active two-year-old who requires constant attention. All three desperately need and deserve a safe, stable and nurturing environment. Expressing love for a child and visiting with a child occasionally is vastly different from being able to care for the particular needs of a child on a day-to-day basis, even with supports in place. As Judge Brenneman stated in In re Samantha B., 45 Conn.Sup. 468, 722 A.2d 300 (1997), aff'd, 51 Conn.App. 376, 721 A.2d 1255 (1998), "Terminating a parent's rights is not ordered to punish a parent who has not tried to rehabilitate; it is ordered so as not to punish a child by denying her a safe, permanent home with proven competent care-takers because her biological mother has tried hard but continues to be incapable of providing such a home for her." Here, respondent parents have not made sufficient efforts to rehabilitate and remain unable to provide the day-to-day care these children need within a reasonable time. The children now have loving foster families with whom they have thoroughly bonded. These families are committed to the children and would like to adopt them.
Thus, in its totality, the clear and convincing evidence compels the conclusion that respondent mother and father remain unable to successfully parent the children and lack the ability to assume a responsible position in the children's lives within a reasonably foreseeable time in the future. Accordingly, based on the clear and convincing evidence presented in this case, the court finds that the petitioner has proved respondents' failure to achieve rehabilitation pursuant to C.G.S. § 17a-112(j)(3)(B).
III. DISPOSITION
As to the dispositional phase of this hearing on the petition for termination of parental rights, the court has considered the evidence and testimony related to circumstances and events up to and including April 29, 2005, the date upon which the evidence in this matter was completed. "`If 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. at 689.]." In re Quanitra M., 60 Conn.App. at 103. "In arriving at that decision, the court is mandated to consider and make written findings regarding seven factors delineated in General Statutes [17-112(k)]." In re Jonathon G., 63 Conn.App. 516, 528, 777 A.2d 695 (2001) (quoting In re Denzel A., 53 Conn.App. 827, CT Page 11060-r 833, 733 A.2d 298 (1999)). The seven factors "serve simply as guidelines to the court and are not statutory prerequisites that need to be proven before termination can be ordered." In re Quanitra M., 60 Conn.App. at 104. The court considers each of them in determining whether to terminate parental rights under this section. The court makes the following seven written findings:
(1) As to the timeliness, nature and extent of services offered, provided and made available to the parents and the children by an agency to facilitate the reunion of the children with respondents, the court finds that DCF offered many services to address substance abuse and parenting issues. Respondent father, for the most part, did not avail himself of these services, although he has participated in visitation. Mother has not successfully participated in services.
(2) As to whether DCF has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended, the court finds that DCF made such efforts.
(3) As to the extent to which all parties have fulfilled their obligations under the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, the court finds specific steps were ordered as to respondents. As set forth above, there was compliance by respondents as to some steps, but failure to comply with many others. DCF has fulfilled its obligations to facilitate reunification of the family.
(4) As to the feelings and emotional ties of the children with respect to the children's parents, any guardian of such child's 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, the court finds that the children have a bond with their biological parents, with Marcus and Christiana having a somewhat stronger bond than Dezmond. Marcus has more of a visiting relationship with father and looks to him more as a playmate. Marcus did not react well when father tried to take on a more authoritative role. The children do have a positive emotional bond with maternal grandmother with whom they visit regularly. Marcus and Christiana have a strong emotional bond with each other and with Dezmond with whom they also visit regularly. Marcus and Christiana have strong emotional ties with the foster parents with whom they have CT Page 11060-s lived since April 2003 and Dezmond has a strong emotional tie with the foster parents with whom he has lived since June 2003. The children have adjusted very well in their foster families and the foster parents are providing the day to day physical, emotional, moral and educational support the children need. The foster parents are committed to the children and would like to adopt them.
(5) As to the ages of the children, the court finds that Marcus M., born January 1, 2000, is five years old, Christiana M., born April 9, 2001, is now four, and Dezmond J., born March 4, 2003 is two years old. The Court further finds that these children require stability of placement and continuity of care and that the children's attorney recommends termination.
Our Supreme Court has long recognized the deleterious effect of prolonged temporary care of abused and neglected children. In re Juvenile Appeal (84-CD), 189 Conn. 276, 455 A.2d 1313 (1983). The Appellate Court has also noted, "[b]ecause of the psychological effects of prolonged termination proceedings on young children, time is of the essence . . ." In re Alexander V., 25 Conn.App. 741, 748, 596 A.2d 930 (1992), aff'd, 223 Conn. 557, 613 A.2d 780 (1994).
(6) As to 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; the court finds that respondents have maintained contact with the children and attended visitation. The court further finds that respondents are unable to assume a responsible parental role in the children's lives. Giving them additional time would not likely enable them to adjust their circumstances, conduct or conditions to make it in the best interest of the children to be reunited. In re Luis C., 210 Conn. 157, 554 A.2d 722 (1989); In re Juvenile Appeal, 183 Conn. 11, 15, 438 A.2d 801 (1981).
(7) As to the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent, the court finds no unreasonable conduct by the child protection agency, foster parents or third parties. DCF took many steps to facilitate reunification. Further, while the respondents' financial means were limited, economic factors did not prevent regular, continuing contact with the children.
With respect to the best interests of the children contemplated CT Page 11060-t by C.G.S. § 17a-112(j)(2), by clear and convincing evidence, and based upon all of the foregoing, the court finds that termination of the parental rights of Nicole M. and Christian M. is in the best interest of the children. Permanency, consistency and stability are crucial for Marcus, Christiana, and Dezmond. Marcus and Christiana have already endured many changes in placement and are now in a foster home where they are very well cared for by foster parents who wish to adopt them. Dezmond has been in the same placement since he first came into DCF care and is benefitting from the permanency and stability of that placement. His foster parents also wish to adopt him. While respondents love their children and desire to care for them, they have been consistently unable to assume a responsible parental role. While both parents may have made slight improvements in their abilities to manage their own lives, they have not achieved rehabilitation or made sufficient improvements in their abilities to care for the children, and are not in a position to provide day to day care for the children. Throughout the children's long stay in foster care, parents have not modified their behavior to make it appropriate for the children to be reunified with them. Although father did make an effort to attend Madonna Place, he has never indicated to DCF that he would like the children placed with him or put himself in a position to be able to care for them. Given mother's failed attempts in services and at treatment programs, there is little, if any, likelihood of her improving to the point where she could be a responsible parent in the future. The testimony established that mother did not understand the risks posed to her children from associating with drugs and drug dealing and exposing herself to incarceration. Mother continued to admit to abusing substances in June and December of 2004 and as recently as March 2005.
In finding that termination of the respondents' parental rights would be in the children's best interest, the court has examined multiple relevant factors including the children's interests in sustained growth, development, well-being, stability and continuity of their environment; their length of stay in foster care; the nature of their relationship with foster parents and biological parents; the degree of contact maintained with their biological parents; and their genetic bond to respondents. In re Alexander C., 60 Conn.App. 555, 559, 760 A.2d 532 (2000); In re Shyina B., 58 Conn.App. 159, 167, 752 A.2d 1139 (2000); In re Savanna M., 55 Conn.App. 816, 740 A.2d 484 (1999). The court has also balanced the children's intrinsic need for stability and permanency against the potential benefit of maintaining a CT Page 11060-u connection with their biological parents. See Pamela B. v. Ment, 244 Conn. 296, 314, 709 A.2d 1089 (1998) (child's physical and emotional well-being must be weighed against the interest in preserving family integrity). Under such scrutiny, the clear and convincing evidence in this matter establishes that termination of respondents' parental rights is in the children's best interest. They are entitled to a resolution, without delay, of the period of uncertainty as to the availability of respondents to serve as their parents by terminating respondents' parental rights. The court also notes that counsel for the children recommends termination.
After considering the children's sense of time, their need for a secure and permanent environment, the need to avoid future placements, and the totality of circumstances, the court concludes that termination of parental rights of respondent mother and father is in the children's best interest. It is accordingly, ORDERED that the parental rights of Nicole M. and Christian M. are hereby terminated as to the children Marcus M., Christiana M. and Dezmond J. The Commissioner of the Department of Children and Families is hereby appointed the statutory parent for the three children.
With regard to the permanency plans for the children, the court hereby approves the plan of termination of parental rights and adoption as to each child and finds that such plans are in the best interest of the children. The court also finds that DCF has made reasonable efforts to effectuate the permanency plans.
A permanency plan shall be submitted within 30 days of this judgment, and that such further reports shall be timely presented to the court as required by law.
Judgment may enter accordingly.
It is so ordered this 8th day of July 2005.
Jongbloed, J.