In re Marcus S.

Full title: IN RE MARCUS S

Court: Connecticut Superior Court Judicial District of Middlesex, Child Protection Session at Middletown

Date published: Feb 29, 2008

2008 Ct. Sup. 3329 (Conn. Super. Ct. 2008)

Opinion

No. H12-CP07-012714-B

February 29, 2008

MEMORANDUM OF DECISION

STUART DAVID BEAR, JUDGE.

This is a coterminous neglect and termination of parental rights ("TPR") case.¹ Initially, on February 2, 2007, the neglect and TPR petitions were filed in the Superior Court for Juvenile Matters at Rockville. Because of a venue issue, on April 5, 2007, such petitions were re-filed in the Superior Court for Juvenile Matters at Hartford, and the case was subsequently transferred to the Child Protection Session at Middletown for trial. Such trial occurred on January 8-11, 2008, and on February 5 and 8, 2008. Post-trial briefs were filed on or before February 26, 2008.

1 Practice Book § 35a-3 provides the procedure for the court's consideration of coterminous petitions:

When coterminous petitions are filed, the judicial authority first determines by a fair preponderance of the evidence whether the child is neglected, uncared for or dependent; if so, then the judicial authority determines whether statutory grounds exist to terminate parental rights by clear and convincing evidence; if so, then the judicial authority determines whether termination is in the best interest of the child by clear and convincing evidence. If the judicial authority determines that termination grounds do not exist or termination is not in the best interest of the child, then the judicial authority may consider by a fair preponderance of the evidence any of the dispositional alternatives available under the neglect, uncared for or dependent petition.

1. In the neglect petition the Commissioner of the Department of Children and Families ("DCF") alleged that Marcus S. ("Marcus") was being denied proper care and attention, physically, educationally, emotionally or morally, and that he was being permitted to live under conditions, circumstances or associations injurious to his well-being. As jurisdictional facts DCF alleged that:

A. the mother had prior DCF and court involvement;

B. the father had prior DCF and court involvement;

C. the mother and her domestic partner had on-going domestic violence issues;

D. the mother had failed to remain consistently engaged in treatment in order to address her domestic violence issues;

E. the mother failed to provide a safe, stable, and nurturing home for Marcus;

F. the father failed to provide a safe, stable, and nurturing home for Marcus; and

G. the mother failed consistently to provide appropriate supervision for Marcus. In its summary of facts annexed to its TPR petition, DCF also alleged the following

. . . 3. On 12/5/03, the Department invoked a 96-Hour Hold on behalf of said child after it was determined that he had sustained multiple fractures and there was no adequate explanation for his injuries. On 12/9/03, an Order of Temporary Custody was granted on behalf of said child by the Superior Court for Juvenile Matters at Rockville. The Order of Temporary Custody was sustained on 12/19/03. On 2/28/05, said child was adjudicated neglected and was committed to the Commissioner of the Department of Children and Families by the Superior Court for Juvenile Matters at Rockville. On 7/20/05, said child was reunified with Father under the Order of Commitment. On 9/23/05, the Order of Commitment was revoked and the court ordered Protective Supervision for a period of six months. The Order of Protective Supervision expired on 12/22/05.

4. Mother and Father have a custody matter currently pending at Superior Court. At the current time, Mother and Father each care for said child, without supervision, approximately the same amount of time each week.

5. Mother has been involved in a romantic relationship with her partner, S_____ T_____, since at least the fall of 2004. Mother and Ms. T_____ have engaged in multiple incidents of domestic violence.

6. Father is aware of the history of domestic violence between Mother and Ms. T_____ and previously informed the Superior Court that he did not believe said child should be exposed to this domestic violence.

7. On 10/26/04, a Protective Order was issued against Ms. T_______ which prohibited Ms. T_____ from restraining, threatening or harassing Mother due to a 10/25/04 arrest for assault 3 and probation violation.

8. On or about 10/14/06, Mother and Ms. T______ engaged in an incident of domestic violence. Upon police intervention, Mother was found with a bloody lip and blood spots on her shirt, and Ms. T______ was found with a bloody knuckle on her left hand, a torn shirt and a scratch on her left cheek. The police observed a kitchen curtain hanging from only one hook, window blinds off of the frame and lying on the kitchen floor, and a large hole in the wall of one of the bedrooms. Mother and Ms. T______ were both arrested and charged with Breach of Peace. On 10/16/06, a Protective Order was issued, which prohibited Mother from entering the family dwelling. This Protective Order remains in effect, to date.

9. Mother has violated the Protective Order issued on 10/16/06. On 1/29/07, Mother stated that she has been residing in the family dwelling following the issuance of the 10/16/06 Protective Order, caring for Ms. T____'s child while Ms. T_______ has been residing elsewhere.

10. Ms. T______ has had a history with the Department since 3/03 for issues pertaining to Ms. T_____'s inability to provide a stable environment for her child, a history of chronic homelessness, and an inability to maintain employment. According to the Department's records, Ms. T_______ had a history of domestic violence with another female partner, other than Mother. On 1/29/07, Mother reported that she has allowed Ms. T_______ to provide childcare for said child up until as recently as 1/12/07.

. . .

14. Mother and Father have not provided an explanation for how said child's the injuries which were sustained on or around January of 2007. Both Mother and Father reported that they do not know how said child sustained the injuries.

15. There has been a pattern of unexplained physical injuries to said child [who] sustained two fractures in 2003, and the explanations provided by Mother and Father regarding how said child sustained the injuries were inconsistent with the injuries. Mother and Father have not provided any explanation regarding how said child sustained his current injuries as well as a mark behind said child's ear and neck in October of 2006.

16. On 1/30/07, said child was removed from the care of his parents pursuant to an Administrative 96-Hour Hold due to sustaining unexplained injuries which appeared to be suspicious for non-accidental inflicted injuries.

(DCF summary of facts, 3-5.)2. In its TPR petition and attached "summary of facts" DCF also alleged.

A. neither the mother nor the father were able or willing to benefit from reunification efforts;

B. Marcus had been found in a prior proceeding to have been neglected or uncared for and the mother and the father had failed to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering Marcus' age and needs, either of them could assume a responsible position in his life;

C. Marcus had been denied, by reason of an act or acts of commission or omission," . . . including but not limited to . . . severe physical abuse or a pattern of abuse . . ." by the mother and/or the father, the care, guidance or control necessary for his physical, educational, moral or emotional well being;

D. Prior to January 30, 2007:

. . . reasonable efforts to prevent the removal of said child were not possible for the following reasons: said child sustained injuries that appear to be suspicious for inflicted injury due to the lack of explanation consistent with the injuries and due to the placement of the injuries. Said child previously sustained multiple fractures when he was an infant, with no adequate explanation ever determined.

(DCF summary of facts, 2.)

E. DCF also alleged:

. . . 2. The Department of Children and Families has been involved with this family since 2003.

3. The presenting problems with this family are: prior unexplained physical injuries, physical neglect, medical neglect, domestic violence, and inadequate parenting.

4. The following services were previously offered to Mother: AMPS supervised visitation and parent education, ECHN for individual counseling, Court-ordered psychological evaluation, Court-ordered psychiatric evaluation, Transportation, Klingberg for supervised visitation, Interval House for domestic violence services, and YWCA SACS (Sexual Abuse Crisis Services).

5. Mother is unwilling or unable to benefit from reunification services in that despite being previously involved with the Department and the Superior Court for Juvenile Matters regarding said child, she continues to engage in a relationship that involves domestic violence, and said child has sustained unexplained injuries for the second time.

6. The following services were previously offered to Father: AMPS supervised visitation and parent education, Kidsafe reunification program, Department of Social Services, R_____ M______ for anger management, and a court ordered psychological evaluation.

7. Father is unwilling or unable to benefit from reunification services in that despite being previously involved with the Department and the Superior Court for Juvenile Matters regarding said child, said child has sustained unexplained injuries for the second time.

(DCF summary of facts, 2-3.)

On September 11, 2007, DCF filed a motion to amend its TPR petition. On November 2 and 6, 2007, Judge Wilson granted such motion to amend to add the following TPR allegations:

A. DCF had made reasonable efforts to reunify Marcus with the mother and the father; and

B. since the second removal of Marcus on January 30, 2007, the respondent parents had been provided with supervised visitation and case management services. The father had been offered individual counseling and anger management treatment with R_____ M_____. The mother had been offered individual counseling, including counseling for domestic violence issues.

Judge Wilson also granted such motion to amend to add the following neglect allegations:

(A) the father knew or should have known that the mother was repeatedly violating the 10/26/06 protective order issued against Ms. T_____;

(B) in November 2006, Marcus appeared at his Head Start school with "burn marks" on the side of his head. Marcus told the mother that "Daddy beat me . . ." This report was not substantiated by DCF.;

(C) on January 29, 2007, the mother reported to DCF that through January 12, 2007, she allowed Ms. T_____ to provide child care for Marcus. The father knew of this arrangement;

(D) on January 28, 2007, the father telephoned the DCF hotline to report that in the morning of January 26, 2007, he observed bruises on Marcus' back;

(E) the father did not take Marcus to a doctor for treatment until January 29, 2007;

(F) on January 29, 2007, the father brought Marcus to be examined by his pediatrician for a complaint of ringworm;

(G) during such examination the father told her that there were marks on Marcus' back that the father believed were caused by the mother;

(H) in her February 1, 2007, affidavit a forensic pediatrician wrote:

Marcus is a 3-year-old boy with a history of multiple unexplained fractures in early infancy while in the care of his biological parents. He now presents with unexplained injuries to his back, and his (now separated) biological parents give conflicting reports about when these injuries appeared. The lower back is not a common area of accidental injury, and at the time they occurred these injuries would have produced significant pain behavior and have been noticed by his caregiver. At least one of the lesions is curvilinear in nature. The location, pattern and unexplained nature of these skin lesions make them highly suspicious for inflicted injuries. Marcus must be placed in an environment where he will be nurtured and protected from further injury. Marcus told me that his Daddy hit him and his Mommy was there. He told DCF staff that Daddy hit him and the Mommy hit him. It is noted that he calls both his own Mother and Father's girlfriend `Mommy,' and that his reports could be consistent with a single event in the Father's home . . .;

(I) on 2/2/07 (Graziani, J.)granted an ex parte order of temporary custody which order of temporary custody was sustained at trial on February 15, 2007 (C. Taylor. J.).

Finally, Judge Wilson granted such motion to amend the summary of facts in support of the failure to rehabilitate allegations to add the following:

(a) A court ordered psychological evaluation of the Respondent Mother, Father, and paternal grandparents, interactional evaluations between each parent and the Child, and interactional evaluations between the paternal grandparents and the Child were scheduled for May 29, 2007 and May 30, 2007 with D____ M_____, Ph.D. Dr. M_____'s report dated August 3, 2007 was received by the Court on August 6, 2007.

(b) The Respondent Father participated in the parent-child interactional assessment, but refused to participate in the individual evaluation on advice of counsel.

(c) Dr. M_____'s report concludes that "it cannot be recommended that the child reside with either parent. The father's lack of cooperation with the present evaluation prevents me from reaching particular conclusions at this time." The report further states that "It is considered doubtful that the parents can achieve a degree of personal rehabilitation within a reasonable amount of time in order to resume a responsible position in Marcus' life. There is no current information about the father that is descriptive of his current adjustment and his rehabilitation potential. I therefore cannot determine his capacity to assume a responsible position in his child's life. The mother has constructed her life in a problematic fashion: She is aligned with a woman who apparently lost custody of her own child. That relationship has a domestically violent history. Her partner was not involved in the evaluation. The mother accepted no accountability for any of the historical injuries to Marcus . . . The mother's current situation does not encourage the belief that she is likely to stabilize satisfactorily in the foreseeable future and overcome the impediments to a recon[c]iliation with her son. Most striking in this case is the very large number of injuries the Child has sustained, his history of multiple placements and caretakers, and the lack of consistency in quality care and safety afforded him. The mother has been an integral part of that history."

(d) Dr. M_____'s report further concludes that "Marcus has experienced multiple injuries, multiple disruptions in primary relationships, and has been exposed to multiple caretaking contexts and also to repeated Court interventions by several courts. It is essential that his life be stabilized and calmed with a single caretaking setting that has an assessed potential to provide him with stability, safety and nurturant care."

FACTS

This court finds the following facts by clear and convincing evidence:

1. Marcus was born in July 2003. In September 2003, Marcus sustained a proximal left tibia fracture (although this was not known and confirmed until December 2003; see paragraph 6, infra).²

2 A fracture is a "serious physical injury." See, e. g., Gerte v. Logistec Connecticut, Inc., 283 Conn. 60, 61, 924 A.2d 855 (2007); In re Rachel J., 97 Conn.App. 748, 760, 905 A.2d 1271 (2006), and In re Cheyenne A., 59 Conn.App. 151, 159, 756 A.2d 303 (2000).

2. On October 24, 2003, Marcus' pediatrician, Dr. G____ contacted DCF to report that the mother brought Marcus to be examined because Marcus could not move his left arm. (February 2, 2007, social worker affidavit, exhibit 14, page 2.) The injury initially was diagnosed as "nurse maid's elbow," which is not related to abuse or neglect. Id. The allegation of medical neglect against the mother and the father was not substantiated by DCF. Id.

3. On December 5, 2003, Dr. G____, contacted DCF to report that Marcus had sustained a mid-shaft fracture of his right arm, and that the parents' explanation was not consistent with such injury. Id.

4. On December 5, 2003, DCF invoked a ninety-six-hour hold on Marcus. Id., 3.

5. On December 9, 2003, an ex parte order of temporary custody was granted by the SCJM at Rockville. Id.

6. Also on December 9, 2003, Dr. Frederick Berrien, a pediatrician affiliated with the Connecticut Children's Medical Center ("CCMC") Suspected Child Abuse and Neglect ("SCAN") Program, reported to DCF that Marcus had in September 2003, suffered a proximal left tibia fracture. Id.

7. On December 19, 2003, the court sustained the ex parte order of temporary custody. Id.

8. By a letter dated December 23, 2003, Dr. Berrien confirmed that injury to Marcus' left arm originally diagnosed as "nurse maid's elbow" was in fact a fracture of the distal left humerus. (Exhibit 6.)

9. Subsequently DCF substantiated physical neglect and medical neglect of Marcus by the mother and physical abuse and medical neglect of Marcus by the father. (Exhibit 14, 3.) Additional issues identified by DCF during its investigation included domestic violence and parenting issues. Id.

10. In April 2004, the parents were evaluated by Dr. D____ M______. Id., 3; see pages 32-34, infra.

11. On July 14, 2004, the parents participated in a second evaluation by such forensic psychologist. Id.; see pages 34-36, infra.

12. Although the father was arrested in connection with the mid-shaft fracture of Marcus' right arm, in October 2004, the state's attorney eventually decided not to prosecute the father. Id.

13. On October 25, 2004, as a result of domestic violence incidents between the mother and her domestic partner, both the mother and her partner were arrested for the offense of assault in the third degree. (Exhibit 29, 1.) The mother also was arrested for the offense of breach of peace. Id. Her partner also was arrested for the offense of disorderly conduct. Id., 1, 3; exhibit 23, 2.

14. The police officer's narrative included references to the use of a knife and to the mother's alleged suicide attempt:

On 10/25/04 I was sent to the emergency room at M___________ Hospital to investigate a domestic assault that [o]ccurred at 46F C________ Dr. A knife was said to have been involved in the assault and the victim was being treated at the hospital. The female suspect was said to possibly still be in the area.

On arrival I spoke to the victim, later identified as (the mother] DOB __/__/85. She told me that she and her girlfriend, S________ T_____ DOB __/__/83 had had a physical altercation which had begun last night and continued into today. [The mother] said that T______ had pinched her repeatedly on the arms and chest and left bruises on her. I observed what appeared to be discolorations on the skin on (the mother']s arms. [The mother] said that during the incident T_____ ripped off [the mother's] clothing and had brandished a knife at her. I asked [the mother] if she had been cut by the knife and she said that she had a small cut on the inside of her left thigh, which she said, "was not even there anymore." [The mother] said that her nose had been broken during the incident. I observed what appeared to be dried blood near her nostrils. [The mother] said that after the fight she and T______ had taken a cab to the hospital and T______ may still be in the lobby.

I went to the lobby and located T_____. A check of her license showed that she had an active warrant in Putnam. The warrant was for FTA on Breach of Peace. T_______ was also the subject of a protective order and the victim listed on the order was from Putnam. Dispatch confirmed the warrant and T_____ was taken into custody. I patted her down, but found no knife. I handcuffed her and advised her of her Miranda rights in front of Officer K. She said she understood them and agreed to tell me about the fight with [the mother].

T______ said that they had had a fight which started last night and went into today. The argument had gone on for several hours and at times became physical. She said that she did not hit [the mother] in the nose. T_____ said that at one point during the incident they were fighting in the bathroom and [the mother] pushed her. T_____ had been holding [the mother] by the shirt and they fell into the tub and [the mother] fell on top of her. [The mother] hit her nose on T____'s forehead. T______ said she ripped [the mother's] clothes but denied brandishing a knife at [the mother]. [The mother] said that at and T______ cut her head as a result. T_____ showed me a small cut on the right side of her forehead. Officer K___ transported T______ to the station and I stayed to take a statement from [the mother].

I took a sworn statement from [the mother] in which she detailed the incident. [The mother] said the incident started between 10:00 PM and 11:00 PM on 10/24/04 and she explained how T_____ had pinched her and she told T_____ to stop, but she didn't. T_____ had pushed [the mother] and she fell off the bed and hit her head. The fight continued and at one point T_____ charged at [the mother] and [the mother] put her arms up to keep T______ away and T_____ ended up falling and that's how she cut her head. Between midnight and 1:00 AM on 10/25/04 was in the living room on the couch and T_____ came in and grabbed W_____ by the throat and ripped her clothes off. T_____ had a knife and began tracing the blade along W_____'s skin until . . . she nicked W_____'s thigh with the blade. At about noon on 10/25/04 another altercation started while they were in the bathroom. T______ was choking [the mother] and they lost balance and fell into the tub and [the mother] hit her nose on part of T____, maybe her head.

I asked [the mother's] doctor to verify if she had a cut on her thigh. The doctor checked and told me there was no cut.

Officer K___ called me and told me that T______ said that [the mother] was suicidal and had taken many pills and written a suicide note prior to going to the hospital. I asked [the mother] about this and she claimed that she was not suicidal. She said that T______ had held a knife to her throat and forced her to take the pills and write the suicide note. T______ told [the mother] she would she would kill her if she did not take the pills.

. . .

I asked [the mother] if either of them had been arrested for family violence before and she said T______ had. I asked her if there were any guns in their house and she said no. I asked her if they had any protective orders against each other and she said no.

I went to the station and spoke to T____. She denied forcing the mother to take pills or write a suicide note. T______ said the mother took the pills on her own and wrote the note and forged T____'s signature on it. She said [the mother] had been in a mental hospital when she was 16 years old . . .

. . .

Based on the conflicting statements I can not determine if a knife was involved in the incident or not.

A state family violence form was filled out.

(Exhibit 29, 1-3.)

15. The mother's criminal record as of January 7, 2008, is set forth in exhibit 22. Her partner's criminal record for these and for other offenses is set forth in exhibit 23. On May 25, 2005, for assault in the third degree against the mother, such partner was sentenced to one year incarceration, execution of sentence suspended, two years probation. Id., 2.

16. The mother was referred by the court for a psychiatric evaluation that occurred on November 10, 2004. (Exhibit 21, 1.) The evaluator concluded that "[t]he present evaluation does not disqualify [the mother] from rapid reunification with her child." Id., 10. However, the mother did not admit to the evaluator her role in or responsibility for the reported injuries to Marcus.

17. On February 28, 2005, the court adjudicated Marcus neglected and committed him to the care, custody and guardianship of DCF. (Exhibit 14, 4.)

18. On April 7, 2005, a DCF worker who was then assigned to the family brought Marcus for an unsupervised visit with the father. (Exhibit JJ.) The worker wrote: "Marcus saw father and went to his arms without hesitation."

19. On April 14, 2005, the DCF worker assigned to the family reported that she had arrived to pick Marcus up from a visitation with the mother. Such social worker

observed Mother's female friend, S, sitting in the passenger side of Mother's car in the parking lot. DCF is concerned that Mother appear to still be involved with S_____, who has beaten Mother on numerous occasions and put her in the hospital twice. Mother denies that she has contact with S________ and denies that they are still involved. S_______ called out to SW as SW walked by and asked SW if she could say hi to Marcus. SW asked S_______ if she is still living with Mother. S_______ said no.

Id.

20. On July 20, 2005, Marcus was reunified with the father but the commitment to DCF remained in effect. Id. The DCF worker assigned to the family as of such date testified as follows at the February 2007, contested OTC hearing:

Q. And is it fair to say that the reason why the child was reunified with father was because all reports were that he was a better parenting resource at that particular time than the mother?

A. Yes.

. . .

Q. . . . Isn't it true that DCF did not return the child because it determined that the mother had perpetrated the broken bones that the child suffered and that dad was absolved of any culpability?

A. Yes, that was our . . . feeling at the time, yes.

Q. What was your feeling at the time?

A. The Department believed that it was most likely that the injuries were not caused by father and most likely that they were caused by mother.

. . .

A. From what I recall, reports from providers were instrumental in us understanding that father did not appear to possess the parenting defeasance that mom did, which would have placed Marcus in harm's way.

. . .

(Exhibit 31, 136-38.) (Emphasis supplied.)

21. On September 23, 2005, the court revoked the commitment of Marcus to DCF, continued the father's physical custody of Marcus and entered an order of protective supervision by DCF for a period of six months. (Exhibit 14, 4.)

22. The mother continued to have professionally supervised visitation with Marcus. Id.

23. On December 22, 2005, the court terminated the order of protective supervision. Id. The court transferred future issues concerning custody and visitation to the Superior Court for Family Matters. Id.

24. On January 24, 2006, DCF closed its file. Id. However, although such file was "closed," DCF's involvement with the family did not cease:

On 2/15/06, the Department was notified by Father's Attorney, R_______ C_____, that Father was served an Ex Parte Order and that said child was removed from Father's home despite Father's attempts to show the officers his court documents stating that he had sole custody of the child. Ms. C______ reported that per the order, Mother is going to have sole custody until 3/8/06. Ms. C______ reported that she was concerned about the safety of the child in the care of Mother. On 2/16/06, Social Work Supervisor R______ S___ documented in the department records that the matter had been resolved as the family court vacated the ex parte order and returned said child to Father's care. It was also noted that Mother could have no contact with said child per court order until the matter is heard on 3/8/06. On 3/15/06, Mother filed for joint custody of Marcus. On 3/15/06, the parents agreed in Hartford Superior Court stating that Mother shall have parenting time with said child Monday morning 6:00 a.m. until Thursday 5:00 p.m., Father will remain sole custodian.

Id.

25. On February 28, 2006, the mother's partner, S_______ T_____ went to a hospital and reported to a nurse that she had been sexually assaulted. (Exhibit 24, 3.) The nurse called the police who came to the hospital to interview the mother's partner. Id. The mother was at the hospital with her partner. Id. The mother supported her partner's report that she had been sexually assaulted. Id., 3-4. The mother also reported to the police investigator assigned to investigate the partner's claim of sexual assault that she and her partner "have been living together for several years and are in a dating relationship." Id., 3.

26. On March 1, 2006, the mother and her partner were interviewed at their home by such police investigator. (Exhibit 25, 3.) He again spoke to the mother, who "described her part in this incident just as she did in her statement." Id. (The mother's statement was admitted into evidence as exhibit 27.) The police performed an extensive and detailed investigation of the partner's allegations. Id., 3-9. After such investigation the police investigator concluded that "this complaint is false." Id., 9. On March 13, 2006, the officer ". . . explained to both [the partner] and [the mother] that making a false complaint is a criminal offense and that [he] would be applying for an arrest warrant for both of them . . . Initially, [the mother] denied that this was a false complaint, but eventually she admitted that the complaint was false." Id. The mother explained why she and her partner had made the false complaint. Id., 9-10.

27. On May 9, 2006, the mother was arrested for the offenses of making a false statement in the second degree, conspiracy to make a false report in the second degree, and making a false report in the second degree, each of which were class A misdemeanors. (Exhibit 22, 2.) On September 26, 2006, the mother was placed in the accelerated rehabilitation rehabilitation program through April 4, 2008. (Exhibit O.) Thus, as of January 7, 2008, such charges were pending against the mother. (Exhibit 22, 2.)

On June 13, 2006, the mother's partner was arrested for the offenses of making a false statement in the second degree, conspiracy to make a false report in the second degree, and making a false report in the second degree, each of which were class A misdemeanors. On July 13, 2007, for the offense of making a false statement in the second degree, the mother's partner was sentenced to one year incarceration, execution of sentence suspended, two years probation, and a five hundred dollar fine. (Exhibit 23, 2.)

28. On August 24, 2006, the mother wrote a letter of apology to the police department. (Exhibit 28.)

29. On October 14, 2006, DCF "became re-involved with Mother" as a result of a report from a police officer who testified at trial. The social worker who prepared exhibit 14 summarized the officer's report as follows:

Officer H________ reported that he responded to a domestic between two women. Officer H______ reported that Mother was arrested for Breach of Peace. Officer H________ reported that the children were not home at the time of the incident, but according to neighbors there has been ongoing domestic violence where the children have been present. Officer H_______ reported that Mother and her partner have minor injuries. Officer H________ reported that Mother had a bloody lip, and Mother's partner, S_______ T____, had bruising on her arms, a torn shirt and a bloody left knuckle. Officer H______ reported that Mother and Ms. T______ have had a previous arrest for domestic violence in Manchester. As there were no children in the home at the time of the incident, the allegation of emotional neglect of said child was not substantiated and the case was closed.

Id., 4-5.

Officer H______ reported and observed the following:

On 10/14/06 at 1852 hours, I was dispatched to 57 V______ Street, third floor, for what was described by a neighbor as an active physical domestic where it sounded like someone had been thrown against the wall. Ofc. D_______ was dispatched as my back-up and Ofc. C_______ responded as well to assist. Ofc. D_______ and I arrived at the same time, with Ofc. C________ arriving moments later. When Ofc. D_______ and I ascended the rear exterior stairs, we did not hear any yelling or sounds indicating that a disturbance was occurring. Upon arriving at the third floor landing, [looked in through the kitchen window and could see that the window curtains were hanging from just one of the hooks due to the rod being knocked off one of the sides, and the window blinds were off the window frame and on the kitchen floor. As Ofc. C______ ascended the rear exterior stairs, the second floor neighbor opened her door and said that it was the third floor and that they have "been fighting all day." I knocked on the door, waited one minute and knocked again. A female, now known to be [the mother], came to the door, while talking on the phone. She opened the door, got off the phone and sat at the kitchen table. I asked her what was going on and she shrugged her shoulders. I asked her if she was alone and she said that S________ was in the bedroom. I asked Ofc. D______ and Ofc. C______ to stand with [the mother] while I went and spoke with S_______

I began to walk down the hallway to the bedroom, when I was approached by a female in the hallway. I asked her to go back to the bedroom so we could talk. She was hesitant but then returned to the bedroom. Once in the bedroom she was identified as S______ T____. I asked S_______ to explain what her relationship was with [the mother] and she said they were girlfriends, and have been in a relationship for about three years. While she was talking I observed that she had a bloody knuckle on her left hand, her shirt was torn, and she had a scratch on her left cheek. I asked her what happened and she said that they were just "horsing around" and that nothing was wrong. I noticed a large hole in the wall, on the opposite side of the room, adjacent to the bed. I asked [the partner] what happened to the wall. She again said that they had just been horsing around on the bed and damaged the wall. I asked [the partner] about her torn shirt and she again said it was from "horseplay." I asked her about her bloody knuckle and she responded that she hit the wall out of frustration. I asked her if there were any restraining or protective orders in place. She said that there had been a protective order, but it had since expired. I asked her where they had been arrested for a domestic before and she said that she in Manchester. [The partner] appeared out of breath slightly and very anxious. I asked Ofc. C_______ to come into the bedroom and stand with [the partner] while I interviewed [the mother] in the kitchen.

I returned to the kitchen, where I now noticed that [the mother] had some blood spots on her shirt. I asked her about them and also now noticed she had a bloody lip. She said she had no idea how her lip became bloody. I asked her if her lips often "spontaneously" bleed. She said "only in the winter when they are dry." I commented to her that her lips were neither chapped nor dry and she still was unable to explain the bloody lip. I asked about the curtain and window blinds and she said that she had opened the door and they must have fallen down. I asked her to explain why we got called to their house and [the mother] explained that she and S________ had been arguing, mostly about money and S______'s anger issues and that must have bothered the neighbors. I asked [the mother] if they fight often, and she said more than she would like and she was actually trying to set up counseling for them on Monday. I again asked her about the bloody lip and she still had no response for it. I asked [the mother] about the hole in the wall in the bedroom and she said that she was too embarrassed to explain. I told her to try explain it because it was important. She told me that a little while ago S_______ was trying to make up with her and was kissing her and [the mother] didn't want her to so she pushed S________ off her and they both fell into the wall. She said they didn't get hurt and they will repair the damages. I observed that there was a room right off the kitchen that had kid's beds in it. I asked where the children were. [The mother] said her child was with her baby's father and that S________'s child was with S______'s aunt. I asked Ofc. D_______ to stand with [the mother] while I went back and spoke with S_______ again.

I returned to the bedroom, and again asked S________ about the damages. She now told me that when they were in the bedroom, [the mother] charged at her and knocked her into the wall, and she fell into the sheet rock, but didn't get hurt. S_______ said that she was getting ready to leave anyway and they will try to work things out later. I advised her that based on the fact they are both injured slightly, there is damages to the apartment and they are both living together in a relationship, I would be arresting them for Domestic Violence. S________ became slightly upset and said "Not again."

I advised her to put on some shoes and grab a photo ID so we can bring her to the _PD for processing. She took off the outermost t-shirt she was wearing (she had two tank tops on under the t-shirt) and decided to put on a sweater since it was cold out. When she took off the t-shirt, I observed fresh bruises on the back of her left arm and also on her forearms. S________ was handcuffed, which were fitted and double locked, and searched by Ofc. D_____. She was secured in Ofc. C_____'s vehicle. I now advised [the mother] she was under arrest and she was also handcuffed to the rear, which were fitted and double locked, and she was searched and escorted to the police vehicles by Ofc. Dimauro. I secured the apartment and on my way down the rear exterior stairs, the second floor neighbor asked to speak with me.

I entered her apartment, where I spoke to C____ K________ of 57 V_____ 2nd floor and T___ S_____ of 57 V_____ Street unit 4. They were both in the same apartment and they both explained that this fighting has been non-stop since [the mother] and S_______ moved in two months ago and today the fighting has been going on since 11:00 a.m. and continued throughout the day. They explained that it got out of control when the entire building was shaking because of them physically fighting and screaming things like "Get off me" and "I'm gonna kill you." Both C____ and T____ explained that they live here and didn't really want to deal with their ([the mother] and S_____) wrath and just wanted to give this information verbally to the police. They explained that they normally would never call the police, but this was out of control. They also said they didn't know if the children were there, being exposed to this, so that's why they called.

I went down to the patrol vehicles, secured [the mother] in my patrol car and transported her to _PD for processing. Ofc. C______ transported S_______ to _PD for processing. Upon arrival, they were both processed and charged with Breach of Peace. They each had a $500.00 surety bond set.

They are to appear at GA #__ on 10/16/06 to respond to the charges. [T]he DPS-230-C form was completed and a call placed to DCF (DCF-136) based on the concerns for other unreported domestics having occurred in the home in the presence of the child . . .

(Exhibit 17, 1-4.)

30. At the February 15, 2007, contested OTC hearing, the neighbor described the behavior of the mother, her partner, Marcus and the partner's daughter in part as follows:

Q. Can you describe what happened that day, what did you do that day?

A. I went to work in the morning and then I came home and then I went back to work at night. And the whole entire time they were arguing, yelling, just fighting [pro]fusely.

Q. And what did you do as a result of that?

A. Well, after it got to be hours on end I, myself and my neighbor downstairs, we were concerned because we didn't know if their two children was upstairs, so we decided to call the officers to come in and see what was really going on.

Q. And what happened as a result of that, if you know?

A. All I know is they kind of like busted up the apartment. They were hitting each other, yelling. One was saying get off. They put a big hole in the bedroom wall by one pushing on another one. We didn't know if the kids were home upstairs so but we were concerned so that's why we ended up calling the officers.

Q. Would you describe this as an unusual event that occurred?

A. Yeah, because we never heard that since they had moved in.

Q. And had there been any other instances where you've heard of any arguing or fighting?

A. Other than, they're always yelling at the kids, always yelling at the kids for, you know, real stupid stuff.

Q. Did you report to the officer that they've been fighting since they moved in there two months ago?

A. Yes, yes I have. I have mentioned that there has been quite a bit of ruckus going on upstairs, yes.

Q. And how frequently do you hear arguing and fighting going on above you?

A. At least once a week.

Q. And are you aware, you said that you heard them yelling at the children, have you heard what statements have been made?

A. Not really, just yelling at them. Can't really make out exactly what they say to them, but just like yelling and then they start crying.

Q. Who starts crying?

A. I don't know which one.

Q. And when you hear, you said, maybe once a week there's arguing, yelling, are you aware with that kind of yelling and argue — is this yelling and arguing between the two women that you also

A. Yes.

Q. Are you aware if the children are there?

A. No.

Q. You're not aware.

A. I'm not aware if they're there when they're arguing, but they do run back and forth when they're playing.

Q. The children run back —

A. Yes, yes. I'm sorry, yes, the children.

Q. So did the, I'm sorry, one moment. Did anyone from the Department of Children and Families ever talk to you?

A. No, nobody's ever come to the house to talk to me about anything about what's going on upstairs, no.

Q So, this particular day that you called you were concerned.

A. Yes.

Q. Regarding the children.

A. Yes.

Q. And your testimony is there's been a lot of other occasions —

A. Yes.

Q. — is arguing.

A. Yes.

Q. You know the children are — how often are the children at home, are you aware of that?

A. I hear them every night during the week. From the time they get up, like 7:00 in the morning because I'm usually like leaving my house between 6:30 and 7. And they're getting up and they're getting ready to leave.

Q. So the children are there quite frequently.

A. During the week.

Q. And do you know what the result, what ensued from the police officers coming, responding to your call? Do you know if anything resulted, are you aware of any protective order?

A. I know, I know when they, when the police had come they took [the mother's partner] out in cuffs and I know they had gotten — they got restraining orders on, I don't know which one, or they got restraining orders on both. But they have still been in the house together.

Q. So after the order's in place you seen them.

A. Yes.

Q. They're both in the house.

A. Yes.

Q. Have you heard any more?

A. No.

Q. And did you want to come and testify today?

A. No.

Q. And could you state why you did not want to?

A. Because they live upstairs and you know, I just didn't want to just have anything happen because when I did call the officers to come out, I don't, I think it was like within a week they had gone downstairs and busted my drying up, they cut my cable all the way up to the dryer panel so I can't even put a new plug on it to use it.

Q. And how do you know it was —

A. Because there was no other problems in that house since they moved in. I've been there a year and a half and my neighbors downstairs have been there a little less than that and she's got all her storage stuff in the cellar with another washer and dryer and it was just mine that was vandalized.

(Exhibit 31, 170-73.)

31. On October 14, 2006, the mother was arrested for the offense of breach of peace in the second degree, a class B misdemeanor. (Exhibit 22, 2.) After the mother began to participate in an alternative to incarceration program about domestic violence, such charge was nolled on July 10, 2007.

32. On October 30, 2006, the mother made a referral to DCF against the father for alleged medical neglect of Marcus. The mother claimed that

. . . twice Father has dropped said child off at school with a fever of 101 to 103 degrees. Mother reported that she took said child to the doctor and he was diagnosed with strep throat and given antibiotics. Mother reported that she saw bruises on said child's neck and described them as looking like burns. Mother reported they look old like they are healing. Mother reported that she took said child to the doctor who said that the marks possibly look like burns. This investigation was unsubstantiated and closed.

Id., 5.

33. On Thursday, January 25, 2007, in accordance with his agreement with the mother, the father's paramour picked up Marcus from his Head Start school program

34. On January 26, 2007, the father noticed that Marcus had marks and bruises on his back that were in the process of healing. He called his attorney for advice and guidance about what steps to take.

35. On Sunday, January 28, 2007, such attorney returned the father's call. As a result of such contact, the father called the DCF hotline to report the marks and bruises on Marcus' back, and he stated that he would be taking Marcus to his pediatrician on the next day, Monday, January 29, 2007.

36. On Monday, January 29, 2007, the father reported the marks and bruises to Marcus' Head Start teacher, and he took Marcus to the pediatrician. Both the teacher and the pediatrician made hotline reports to DCF. The investigator set forth her telephone contact with such pediatrician:

On 1/29/07, this Investigator contacted Dr. K____ via phone. Dr. K____ reported that when the medical assistant was bringing Father and said child into the exam room in order for said child to be seen said child stated, "My mommy hit me." Dr. K____ reported that said child repeated this statement to her in front of Father. Dr. K____ stated that the primary reason Father gave for bringing said child in to be seen was for ringworm. Dr. K____ stated that Father then mentioned that [Marcus] had a mark on his back and complained that Mother had hit him. Dr. K____ reported that she asked said child again who hits him and he stated Mother hits him. Dr. K____ reported that said child was not very descriptive. Dr. K____ stated that the marks are healing and a new scab is forming. Dr. K_____ stated that the lesions could possibly be three to five days old, She stated that is the only thing she was able to see due to his skin coloring. Dr. K____ further stated that both parents seem loving toward him.

Id.

37. Such investigator personally observed Marcus' back in the presence of the Head Start teacher. She set forth her observations:

Two primary marks were visible. One lesion was observed just below said child's waist line and above his right buttock. The lesion was dark brown in appearance and oval in shape, approximately 3/4 to one inch in width which appeared to be scabbed with flakey pe[e]ling skin with a narrow diagonal dark brown mark which extended upward approximately one inch on the right side and appeared to be approximately a 1/2 inch in width at the upper most part of the mark. The other lesion was located on the left side of his mid-back and was also dark brown in appearance. It was a thin curved linear vertical lesion, approximately one and a half inches in height with a small mark at the bottom of the lesion which was approximately 1/2 centimeters wide and pink and white in appearance, as a scab that fell off. There was also a small oval shaped mark, approximately one quarter inch in length on the side of said child'[s] lower left jaw which was approximately three to four centimeters wide and pink and white in appearance. It appeared to have already been a scab which fell off.

Said child also had a horizontal scar on his lower left side above his hip which was also linear curved in appearance . . .

Id., 6.

38. On January 29, 2007, Marcus was examined by Dr. P___ at the CCMC emergency facility. Id., 7. Dr. P determined that

the injuries are not new and appear to have been there for longer than one week because the marks already have pigment.

Id., 7. Prior to the contested February 15, 2007, hearing, the DCF investigator was not aware that Dr. P___ had opined that the marks and bruises on Marcus' back were "not diagnostic for abuse." (Exhibit 31, 79.)

39. During the February 15, 2007, contested (by the father) hearing on the ex parte order of temporary custody, a forensic pediatrician from CCMC testified that on January 30, 2007, when she examined Marcus, the marks and bruises on his back ". . . were in an advance[d] stage of healing." Id., 32. Such pediatrician opined that at the time the injuries "occurred these injuries would have produced significant pain behavior and been noticed by his caregiver." (Exhibit 15, 3.)

40. On January 29, 2007, such DCF investigator "checked Department records for any history related to Mother's partner . . ." (Exhibit 14, 7.) Such investigator determined that the mother's partner

has had a history with the Department since 3/03 for issues pertaining to Ms. T______'s inability to provide a stable environment for her child, a history of chronic homelessness, and an inability to maintain employment. According to the Department's records, Ms. T_____ had a history of domestic violence with another female partner, other than Mother. Ms. T____'s case is currently open with the Department as she has petitioned the Probate Court and requested that Mother become co-guardian of her 4-year-old child . . .

Id., 5.

41. On January 29, 2007, such investigator interviewed the mother about her relationship with her partner. The mother said that:

. . . there is a current protective order in place between her and her partner, S________ T____. Mother reported that despite this protective order, she and M[s]. T______ remain in a relationship. Mother reported that Ms. T_____ is staying elsewhere as a result of the protective order.³ Mother reported that she is attempting to obtain joint custody of Ms. T_____'s daughter . . . Mother denied knowing a street address or phone number in order to contact Ms. T____. Mother reported that [such daughter] remains residing in the home with Mother. Mother reported that Ms. T_____ remains at the home with [such daughter] after picking her up from school until Mother returns home, and then Ms. T_____ leaves. Mother admitted having contact with Ms. T_____ for the purpose of childcare arrangements. Mother reported that she is no longer working as Ms. T______ is not allowed to provide childcare for said child due to a court order, dated 1/24/07, from the Hartford Family Court.

3 The mother's statement to the investigative worker about her partner "staying elsewhere" was contradicted by her neighbor:

I know, I know when they, when the police had come they took [the mother's partner] out in cuffs and I know they had gotten — they got restraining orders on, I don't know which one, or they got restraining orders on both. But they have still been in the house together.

(Exhibit 31, 172; page 23, supra.)

Id., 7.

42. On January 29, 2007, the mother claimed to a DCF investigator, N_____ C____ D__, the author of the affidavit that was admitted into evidence as exhibit 14, that on January 22, 2007, she had observed marks on Marcus' back. (Testimony of investigator.)⁴ Prior to January 29, 2007, the mother did not report her observations to the police, DCF or to Marcus' pediatrician, nor did she explain why she did not take Marcus to the hospital. Id. Because the mother claimed that she first noticed the injuries on Marcus' back when Marcus was with her (as he was each Monday after school through Thursday morning when she brought him to school), the investigator stated that it was the mother's responsibility to take Marcus to his pediatrician. Id. ⁵

4 The investigator was told by the daughter of the mother's partner that Marcus had been hit by a belt. Id. Marcus also told the pediatrician's assistant and the pediatrician that the mother had hit him. (Testimony of pediatrician's assistant; exhibit BB.)

5 In his testimony, Dr. Berrien also stated that the care giver (in this case the mother on January 22, 2007, according to her claims) should have had such injuries treated after she noticed them. Dr. L__________ also testified that the care giver should have noticed such injuries, and that the injuries should have been treated. (Testimony of Dr. L______.) However, when Dr. L___________ saw such injuries, they were "relatively well-healed," and she could not determine when they were inflicted. Id. She thought, however, that the injuries were more than a few days old because they were significantly healed. Id. She could not determine how or with what implement the injuries were inflicted. Id. She determined with a reasonable degree of medical certainty that they were highly suspicious for inflicted injury because, inter alia, their location was unusual for accidental injury, and Marcus stated they were inflicted. Id. See also exhibits 15 and 16.

43. The investigator also was aware that the mother and her partner had a history of domestic violence. Id. The investigator was also aware that the mother previously had made court-related misrepresentations to obtain temporary custody of Marcus, and that the mother had obtained unsupervised visitation despite DCF's position that visitation between the mother and Marcus should be supervised. Id. However, after her investigation the investigator did not conclude who was the perpetrator of the marks and bruises on Marcus' back. Id. Between January 22, 2007, and January 29, 2007, Marcus was "visible in the community." Id. He attended the Head Start program when he was scheduled to do so. Id.

44. Because each parent was living in a household with other children, the DCF investigator made hotline referrals on each of those children. Id. As a result of the subsequent investigation, the mother's partner's daughter was removed from their home. Id. None of the children of the father's paramour, with whom he lived, were removed. Id. See pages 33-34, infra.

45. Such investigator testified that Marcus said that the mother beat him with a belt, but subsequently he was inconsistent and said that the father had hit him with a belt, pencil or toy. Id. The investigator did not come to a conclusion about which parent (or other persons) were responsible for the injuries to Marcus' back. Id.

46. Such investigator testified that the father was the first person to make a DCF hotline referral about the injuries to Marcus' back. Id. However, DCF concluded that the father's referral was "too late." Id. However, no person reported that Marcus had been harmed by any delay in examination, treatment (none was required on January 29, 2007) or referral.

47. On January 29, 2007, the mother stated to such investigator that if Marcus "had to be removed," that he be removed not only from her but also from the father:

On 1/29/07, this social worker discussed with Mother the Department's concerns regarding said child's marks and her inability to provide an explanation for them. In return, Mother asked this Investigator that if said child needs to be "removed," that he be "removed from both of us" . . .

(Exhibit 14, 7; exhibit 31, 75.)

48. Although Marcus had been living with the father since July 2005, the mother rejected the DCF investigator's offer to have Marcus return home with the father. (Exhibit 31, 76.)⁶ This discussion occurred while the mother and the investigator were at the Head Start facility. Id., 84. If the mother had agreed, on January 29, 2007, DCF would have allowed Marcus to return home with the father. Id., 86. The effect of the mother's rejection was that DCF placed Marcus in foster care.

6 Why DCF involved the non-custodial mother in the placement decision and allowed her to veto placement with the father who was sole custodian pursuant to court order was not explained during the trial.

49. The investigator set forth DCF's concerns about how the father acted after his January 26, 2007, discovery of the marks and bruises on Marcus' back:

On 1/29/07, Father arrived at the CCMC Emergency Department. Father reported to this Investigator that he noticed the marks on said child'[s] back on 1/26/07. Father reported that he contacted his attorney and she did not respond to him until 1/28/07, at which time she advised him to call a referral into the Department, and told him to take said child to his doctor. Father stated that he did both. Father's attorney contacted him during the interview at which time both Father and his attorney were informed that this Investigator has concerns regarding Father not seeking medical attention for his son prior to 1/29/07 and not contacting the DCF Hotline prior to 1/28/07. Attorney C_____ stated that Father did contact her on 1/26/07. Attorney C_____ advised Father to cooperate with the Department. On 1/29/07, Father reported to this Investigator that he took said child to the bathroom on 1/26/07 and said child pulled up his shirt himself and showed Father the marks on his back and stated, "Mommy hit me with a belt." Father stated he asked said child what happened and what Mother used to cause the marks on him and said child said "a belt." Father reported that said child told paternal grandmother this as well. Father reported that he does not know what happened to said child. Father reported that the school told Father that said child was not injured at school.

(Exhibit 14, 7-8.)

50. On January 30, 2007, the father met with Dr. L_______, who testified at trial and who was qualified as an expert in the detection of child abuse and neglect. The father told her that there were no injuries on Marcus either on January 21 or on January 22, 2007, when the father brought Marcus to the Head Start program. (Testimony of Dr. L______.) Marcus told Dr. L__________ that the father hit him and the mother was there. Id. Neither parent claimed to have knowledge of the source or cause of the bruises and marks on Marcus' back. Id.

51. On January 30, 2007, DCF invoked a ninety-six-hour hold on Marcus. Id., 11.

52. The CCMC emergency room pediatrician, Dr P____ also could not state that the injuries to Marcus' back were the result of abuse. Id., 39. The expert witness agreed with Dr P____ but she opined that such injuries were "highly suspicious for abuse." Id., 43. On or before February 2, 2007, DCF was aware that such expert witness could not state how the marks and bruises on Marcus' back were caused. Id., 78.

53. On February 2, 2007, at the SCJM at Rockville, DCF filed its coterminous petitions for neglect and termination of parental rights, and DCF also filed an ex parte motion for temporary custody of Marcus. (Exhibit 1, 2.)

54. On February 9, 2007, the ex parte order of temporary custody was sustained against the mother, but the father contested such order. Id.

55. On February 15, 2007, a contested hearing was held at the Child Protection Session at Middletown (exhibit 31), and on February 16, 2007, Judge C. Taylor sustained such order as to the father. Id. However, during such hearing, Dr. L_____, the witness DCF had qualified as an expert in pediatrics and the detection of child abuse, id., 7, testified as follows:

Q. So doctor, you can't say for sure that these marks were intentionally inflicted on this child.

A. No.

Id., 36.

56. The DCF investigator confirmed that prior to January 29, 2007, DCF had not received any reports from the Head Start program that Marcus attended about Marcus having complaints or being in pain. Id., 79. Marcus' teacher at the Head Start program testified at the trial. She stated that she met Marcus in September 2006. Marcus was scheduled to attend the Head Start program each Monday through Friday from 8:30 a.m. through 2:30 p.m. Until he was removed by DCF on Friday, January 29, 2007, he was doing well in the program. On January 22, 26 and 29, 2007, inter alia, he attended the program. Nothing unusual occurred either on January 22 or January 26.

57. Such Head Start teacher testified that on January 29, 2007, the father came to school at 8:30 a.m. The father stated that he had to take Marcus to the doctor because Marcus had bruises, and that Marcus had told him that the mother had hit him with a belt. Such teacher, a mandatory reporter, reported the conversation to DCF by telephone and by filing the requisite form ("form 136"). (Exhibit HH.) Such teacher spoke with Marcus who told her that "mommy" hit him with a belt. On January 29, 2007, she observed that Marcus seemed fine.

58. On February 23, 2007, the mother identified the maternal grandmother and a foster care provider as potential resources for Marcus. DCF found that the maternal grandmother was not an appropriate resource, and the foster care provider said that he was unable to be a resource. (Exhibit YY.) On March 5, 2007, the mother began a twenty-six-week domestic violence education program. (Exhibit E; exhibit F; exhibit G, 2.)

59. On March 7, 2007, DCF conducted an announced visit at the home of the father, his paramour, their son and her daughter. (Exhibit DD.) The DCF worker reported the following:

ISW W_______ and this worker conducted an announced home visit. Father . . . was home with the children and mother was [at] work. [Such son] was asleep in his crib and was wearing a long sleeve shin and jeans. [Such son] appeared well care[d] for with no visible marks or bruises . . .

ASSESSMENT

The 1/30/07 CPS report has been unsubstantiated on 3/7/07 after review of the investigation activities by Investigation Supervisor E_____ R______ and Investigator T_____ T___-H____

1) The household members were observed and interviewed and it was concluded:

A-There are no issues of physical discipline of the children.

B- There are no issues of physical neglect.

C- There are no issues of substance abuse

D- There are no issues of domestic violence.

2)The state police record request was submitted and returned with no findings of an arrest for [the paramour] or father.

DISPOSITION

In regards to the report dated 1/30/07, based on the information obtained, the allegations of Physical Neglect of [such son] and [the paramour's daughter] by . . . (father) is NOT Substantiated. Case is recommended for closure.

(Exhibit DD.) Such DCF investigator testified at the trial that the children were fine and healthy, the home was clean and organized, and there were no concerns about physical abuse.

60. On March 12, 2007, the mother entered into therapy with her current therapist who testified at the trial.

61. On April 5, 2007, DCF re-filed its neglect and TPR petitions in the SCJM at Hartford.

62. A forensic psychologist, Dr. D____ M_____, conducted three evaluations of the parents. The first evaluation occurred on March 23, 2004, March 31, 2004, and April 12, 2004. (Exhibit 18, 1.) Such evaluation resulted in "problematic findings":

. . . 2. Psychological evaluation of the parents brought problematic findings, in the mother's case because of standardized testing results indicating a significant level of emotional and cognitive disturbance as well as problems in social relatedness and in social perception. These contrasted strongly with the mother's self-report of normalcy.

In the father's case, the psychological evaluation could also not be concluded. In his case it was because of validity issues as these arose in his standardized assessment. The father failed to answer some questions, answered inaccurately and with distorted responses to others, and produced protocols of questionable validity. The issue arises as to the extent of his English language mastery particularly for written materials.

. . .

4. During the limited access I had for the Court ordered parent and child interactions, I saw positive interactions between both parents and the child. The father's interaction started slowly but then took on normal range proportions with a good interaction between himself and the child. The mother and child seemed to relate satisfactorily during my observation of them.

The observational materials received from AMPS, by contrast, while consistent with the positive father and child observation, indicates several levels of disturbance in the mother and child relationship. Many of those reported difficulties are consistent with the actuarial report of the MMPI-2 which indicates that the mother is likely to have significant difficulty in social relationships and in social perception. She evidenced both problem areas in her interactions with her child. She had difficulty relating to him satisfactorily and she misperceived many of his behaviors. She also had difficulty anticipating what she should do parentally for him. She had difficulty also in incorporating parenting advice offered during her supervised AMPS visitation sessions.

. . .

7. Both parents are in need of substantial support services in order to satisfactorily care for the child. According to medical determination, the child has been non-accidentally injured while in the father's care. According to the AMPS finding, the mother consistently mismanages ordinary childcare situations with a childcare record that is unsatisfactory to guarantee the ordinary emotional, physical, and nutritional safety and welfare of the child.

. . .

9. Both parents are presenting with characteristics that indicate they are not in a position to safely provide childcare responsibility to Marcus.

10. Commitment of the child is recommended.

11. Both parents are clearly in need of parenting education and individual counseling. In the mother's case, follow up evaluation is needed in order to clarify her clinical status, to provide a meaningful differential diagnosis, and then to address the clinically based therapeutic interventions that are required in her case.

In regard to the father, follow up interviewing is also recommended . . . Once this is accomplished, he should then be provided with whatever assistance he needs to finish the assessment procedures completely so that his differential diagnosis can be concluded. One of the oddities in this case is that the father has acquired the responsibility for the non-accidental injury of the child although in repeated observed interactions his childcare is seen as spontaneously good and competent and far better than that of the mother whose childcare behavior was found by AMPS to be deficient. It seems that the father may have some hidden anger management issues that do not surface during his ordinary supervised childcare.

. . .

Substance abuse was not identified as a problem for either parent.

Id., 13-15.

63. The second evaluation by the forensic psychologist occurred on July 14, 2004. (Exhibit 19, 1.) Such forensic psychologist made, inter alia, the following findings:

1. The mother's profile has calmed substantially and does not contain the problematic personality and clinical indicators seen at the first round of testing.

2. The father's tested findings are invalid . . .

3. Inconsistencies have emerged in the father's narration about the events that surrounded his son's injuries. The scenario that he does describe indicates rushed action on his part with his child surrounding his recognition of the child's injury. Although he claims that the child either held onto or the child's arms got stuck in some of the padding, he is not able to relate the perceptual experience of having felt a snag or a tug as he lifted the child out of the crib. The mother reports that there are inconsistencies in his report about how he handled the child when lifting the child from the crib.

4. On August 18, 2004 I had a telephone consultation with A__ T____ of AMPS who provides the parent training and education for both parents. She gave me this report: The father is still doing better with Marcus than the mother. Marcus is also more responsive with the father and always has been. Marcus has never wanted to be held by mom. On the first day, Marcus reached out to the father almost immediately after being with him in the room and still does so. He is observed to even move toward the father's voice before sight contact is made. Last week Marcus tried to leave the room and to follow the transporter, Rick though he was in the room with the mother at the time, and did not want to stay with her.

The mother lacks emotional responsiveness to the child. She has not yet started any treatment. The mother has variable presentations — stoic, script-like, and mechanical on some occasions, and on others friendly and more interactive with Marcus. The mother has also been observed to be rough with Marcus on two occasions. On one day she held him and was cuddling him and tucked his arm behind her back, and it appeared to Ms. T_____ that she was pinning him to her so he couldn't move. When Ms. T____ pointed this out to her, she reached and jerked his arm out from behind her back and forward in a very rough manner. A__ T_____ was surprised and concerned. Later that same day the mother could not get the child to sit still in order to tie his sneaker so she put him between her legs, pressed him back against her, leaned over him with her shoulders, and pinned him to her as she tied the sneakers. He was unable to move. A__ T_____ told her that she could have broken his bones and found the mother unresponsive to this observation and admonishment.

He still does not like to be held by his mother but snuggles right up to his father.

5. According to the actuarial results, the mother has experienced a "flight into health" in which her major symptoms and issues have disappeared. By contrast, it is now clear that the father's materials are invalid . . . His functional ability, however, appears to be substantially higher, and in conversation with Ms. T_____ who has had multiple exposures to him, she has not had a sense of any intellectual deficit. This remains a puzzling case. The child has been injured, the injury was considered non-accidental, was discovered by the father when the mother was at work, and the mother is reported to have acted properly by coming home promptly to see what was wrong. It appears that the father deferred to the mother by the nature of the stories that they told. The father seems to accept responsibility for causing the child's injury though he is not able to produce any information that might show how he did so. His acceptance of responsibility is therefore theoretical rather than actual. It is as if he were responding to a hypothetical question by saying yes, it must have been me since I was there, while the mother responds to the same hypothetical question by saying no, it wasn't me since I wasn't there. The only other person who was there was Marcus. He is not verbal and able to give an event report. Some might be inclined to respond to his behavior as an indication not only of where his attachments and preferences lie, but also where his aversions are, and the documentation of aversion might be read as indicating where a trauma source lies. In that event, it would be the mother who would be suspected of having caused the injury since there are obvious contact problems between herself and her son . . .

Id., 6-7 (emphasis supplied.)

64. On May 29, 2007, and May 30, 2007, for a third time the forensic psychologist evaluated the father, the mother and Marcus. (Exhibit 20, 1.) During those days the paternal grandfather, the paternal grandmother and the mother's partner also had contact with such evaluator. Id., 1 et seq. Such forensic psychologist wrote that the "data from this evaluation allows for the following conclusions with a reasonable degree of psychological certainty." Such conclusions, inter alia, are as follows:

1. Marcus is presenting with some developmental lags. He is a well formed and handsome child who can be mildly hyperactive and who shows reasonable social relatedness and willingness to interact with known adults. He is still showing some language delay/lag.

2. The mother's profile is defensive but essentially normal range. She indicates that she is living with her partner and that their relationship has stabilized.

3. I was able to observe each parent with the child and, unexpectedly, also to briefly see the child with the mother's partner. The child related most spontaneously to the mother's partner on two occasions at the office, going to her as if the mother's partner were the mother figure. The child was observed to transition easily from the grandparents to the mother and to her partner. He actually ran to the mother's partner and called the mother's [female] partner "Old Man"⁷ with pleasure.

7 The DCF worker who investigated the January 2007, bruises and marks on Marcus' back also noted in a weekly visit the mother's reference to the mother's female partner as "old man":

Mother called MGM from her cell phone for Marcus to talk to during the visit. Marcus was not interested in talking on the phone. Mother then called [the mother's partner] during the visit in order to allow her to speak with Marcus as well. Mother had Marcus refer to [the mother's partner] as "Old Man" and referred to her as him. ISW addressed that Mother should focus her attention on Marcus during the visit.

(Exhibit BBB, 1.)
In another weekly visit the mother attempted to have her partner participate in the visit:

2/23/07 ISW conducted a supervised visit for Marcus and Mother. Mother arrived 25 minutes late for the visit. Mother arrived with [her partner] asking if [her partner] could join the visit. Mother was informed that [her partner] is not authorized to attend visits with Marcus. Mother brought lotion and a few games . . . MGM called during the visit and Mother attempted to get Marcus to speak with her, but he was uninterested. [The mother's partner] also called during the visit. Mother referred to her as old man and as "he." Marcus was also interested in speaking to [the mother's partner] on the phone.

Id., 2.

The mother reported weekly visitation with Marcus. The mother and child had a continuous and positive interaction without some of the more babyish behaviors that had been observed between the child and his grandparents and also with an absence of some of the ADHD behaviors previously seen.

The father and child had an awkward greeting. The father had brought along a small bag of cherries. He asked me for a paper and pencil and the father attempted to interact with his son, to practice letters with him, and to do some drawing. Marcus fell asleep during the interaction. The father was seen to sometimes do items with his son that were beyond the child's developmental capacity. The father did not seem to recognize this but appeared well intentioned. The child reacted satisfactorily to his grandparents but most comfortably and affectionately with his grandfather.

4. The parents are estranged.

5. The grandparents are caring for the child. [On the dates of the evaluation, this arrangement had existed for approximately three weeks.]

6. The psychological parenthood of Marcus was difficult to determine. He has been in so many places, with so many combinations of caretakers, that he himself may be confused on this topic. His capacity to report is limited. He shows a sense of connection to his mother, his father, his mother's partner, and also his grandparents and particularly his grandfather.

. . .

10. The history of the case indicates that neither parent can be seen as a reliable and safe caretaker of the child.

11. It cannot be recommended that the child reside with either parent. The father's lack of cooperation with the present evaluation prevents me from reaching particular conclusions about him at this time.

12. The mother's partner should have been included in the evaluation. But apparently the partner was ambivalent about this. While this matter came up during my evaluation, the partner was not referred back for inclusion in the evaluation, leading me to dictate my findings as they now exist. Particular treatment recommendations for the parents would require more information than is available at this time.

The grandparents could probably profit from some parenting assistance in managing the particular characteristics and challenge that Marcus presents.

. . .

15. It is considered doubtful that the parents can achieve a degree of personal rehabilitation within a reasonable amount of time in order to resume a responsible position in Marcus's life. There is no current information about the father that is descriptive of his current adjustment and his rehabilitation potential. I therefore cannot determine his capacity to assume a responsible position in his child's life.

The mother has constructed her life in a problematic fashion. She is aligned with a woman who has apparently lost custody of her own child. That relationship has a domestically violent history. Her partner was not involved in the evaluation. The mother accepted no accountability for any of the historical injuries to Marcus. Marcus showed a stronger interest in the mother's partner than in the mother herself. But the mother did do well with the child during the course of their separate parent and child interview. The mother's current life situation does not encourage the belief that she is likely to stabilize satisfactorily within the foreseeable future and overcome the impediments to a reconciliation with her son. Most striking in this case is the very large number of injuries the child has sustained, his history of multiple placements and caretakers, and the lack of consistency in quality care and safety afforded to him. The mother has been an integral part of that history. Her explanations for moving far away and intensifying her relationship with her current partner given their problematic parenting history and her partner's parenting problems do not encourage a belief in the mother's common sense and ability to prioritize her life for the best interest of her son.

18. Marcus has experienced multiple injuries, multiple disruptions in primary relationships, and has been exposed to multiple caretakers in multiple caretaking contexts and also to repeated Court interventions by several courts. It is essential that his life be stabilized and calmed with a single caretaking setting that has an assessed potential to provide him with stability, safety, and nurturant care.

Id., 16-18.

65. During his testimony, such forensic psychologist stated that this case was "puzzling and difficult." Although his office observations of the parents and Marcus were positive, the reported history with repetitive injury to Marcus and the domestic violence in the mother's home were worrisome. The forensic psychologist did not understand why, on January 25, 2007, Marcus' body immediately was not checked by the father or his paramour when they heard him say that his "mommy beat him." He stated that the father should have been alert and acted immediately given the history of the case. He said that even in the obvious absence of pain, the father should have checked the child and should have been concerned about possible internal injury. Given the history of the case, the father immediately should have taken Marcus to a doctor. His opinion was that Marcus would not be safe if he were returned to either parent's home. However, he recognized that Marcus had love and affection for, a positive bond with, and an attachment to each parent. He assumed that the paternal grandparents, with whom Marcus has lived since early May 2007, would continue to provide a stable home for Marcus. He stated that the mother should be allowed to have contact with Marcus in a protected environment, and that Marcus should also have contact with his father.

66. Such forensic psychologist also testified that the social study filed in connection with the TPR petition set forth the chaos for Marcus of living between two parents. He opined that Marcus had been physically and psychologically injured by such experience. He noted that when Marcus answered adults, he kept his answers as short as possible. Although Marcus had been abused, he was unwilling to talk about such abuse.

67. Such forensic psychologist further testified that a transfer to the paternal grandparents of guardianship⁸ of Marcus would not be a solution that would give Marcus stability and permanency. He opined that such a transfer would lead to further litigation, and he noted that in his opinion there had already been too much litigation. He recommended termination of parental rights as the best result for Marcus, because it would provide for permanency and would minimize conflict between the parents over Marcus, "whose life had been seriously disrupted." He opined that a termination of parental rights was the only way to manage the situation in a complex continuing case.

8 The option of transfer of guardianship of a child to a person other than a parent appears in several Connecticut statutes. See, e. g., General Statutes § 17a-15 that provides in part:

(a) The commissioner shall prepare and maintain a written plan for care, treatment and permanent placement of every child and youth under the commissioner's supervision, which shall include but not be limited to a diagnosis of the problems of each child or youth, the proposed plan of treatment services and temporary placement and a goal for permanent placement of the child or youth, which may include reunification with the parent, long-term foster care, independent living, transfer of guardianship or adoption. The child's or youth's health and safety shall be the paramount concern in formulating the plan . . . and General Statutes § 46b-129(k) that provides in part:

. . . 2) At a permanency hearing held in accordance with the provisions of subdivision (1) of this subsection, the court shall approve a permanency plan that is in the best interests of the child or youth and takes into consideration the child's or youth's need for permanency. The child's or youth's health and safety shall be of paramount concern in formulating such plan. Such permanency plan may include the goal of (A) revocation of commitment and reunification of the child or youth with the parent or guardian, with or without protective supervision; (B) transfer of guardianship; (C) long-term foster care with a relative licensed as a foster parent or certified as a relative caregiver; (D) adoption and filing of termination of parental rights; or (E) such other planned permanent living arrangement ordered by the court, provided the Commissioner of Children and Families has documented a compelling reason why it would not be in the best interest of the child or youth for the permanency plan to include the goals in subparagraphs (A) to (D), inclusive, of this subdivision. Such other planned permanent living arrangement may include, but not be limited to, placement of a child or youth in an independent living program or long-term foster care with an identified foster parent.

The concern of the psychological evaluator about a transfer of guardianship presumably was based on the rights of each parent that continue to exist after such a transfer. Practice Book § 35a-20 provides:

Whenever a parent or legal guardian whose guardianship rights to a child were removed and transferred to another person by the superior court for juvenile matters seeks reinstatement as that child's guardian, the parent or legal guardian may file a petition with the court that ordered the transfer of guardianship.

The clerk of the court shall assign such petition a hearing date and issue a summons. The petitioner shall cause a copy of such petition and summons to be served on the child's current legal guardian(s). Before acting on such petition, the judicial authority shall determine if the court still has custody jurisdiction and shall request, if necessary, that the commissioner of the department of children and families conduct an investigation and submit written findings and recommendations before rendering a decision.
Pursuant to General Statutes § 46b-129(m), a parent may file such a petition, or a motion to modify commitment, once every six months:

. . . m) The commissioner, a parent or the child's attorney may file a motion to revoke a commitment, and, upon finding that cause for commitment no longer exists, and that such revocation is in the best interests of such child or youth, the court may revoke the commitment of such child or youth. No such motion shall be filed more often than once every six months . . .

Thus a transfer of guardianship may not provide the "permanency" for a child provided by a termination of parental rights and subsequent adoption.

68. Such forensic psychologist opined that if the court were to find that one of the parents was the perpetrator of the physical abuse, then the other parent's custody should not be affected. However, such forensic psychologist stated that he could not "unravel the mystery" of which parent caused any of the four reported injuries (the three fractures in 2003 or the January 2007, bruising and scratches on Marcus' back).

69. On July 5, 2007, a representative of the domestic violence education program that the mother was attending wrote to the court that by such date the mother had attended seventeen classes and that she appeared

. . . to grasp the skills taught in group sessions and report[ed] using them in her daily life. She provide[d] excellent feedback to her peers and [was] respectful towards her facilitators.

(Exhibit E.)

70. On August 28, 2007, the mother's current therapist who testified at trial wrote the following report to the mother's attorney:

I am writing this to inform you [the mother] has attended bi-weekly individual therapy and continues to do so. While in session she is able to process thoughts and actions, as it relates to most areas of her life. She is able to understand past actions have played an important part to her current situation. She strives to gain insight and is moving forward in a positive way both for herself and Marcus.

Although it is difficult to participate in positive parenting being separated from her son, [the mother] utilizes her supervised time with Marcus to work towards this goal. It is my belief she strives to encourage her son to maintain open and honest communication with his family. This involves safe exploration of feelings, establishing positive self-esteem and developing future goals for his age and ability.

On a personal level [the mother] attends Domestic Violence classes and remains positive and goal orient[ed]. She is employed full time with opportunity for advancement. She is able to evaluate each situation that may arise both at home and work and develop feasible solutions for all concerned. [The mother] has been faced with many difficult challenges in many areas of her life. She is able to separate each issue, apply positive problem solving skills and accept feedback as it relates to her decisions.

Although anger is a part to life and in itself is acceptable. It is the ability to process anger that presents as a potential problem. Since attending therapy [the mother] has shown an increased ability to process feelings, understand their origin and work towards effective strategies in a calm and positive manner. It is my professional belief [the mother] is working diligently to provide a safe and healthy setting for both herself and her son.

(Exhibit H.)

71. Such therapist testified that the mother started therapy with her on March 12, 2007, and that she consistently attends one-hour sessions every other week. The sessions involve relationships, parenting, domestic violence coping skills, and dealing with employment issues. Such therapist stated that the mother has developed positive coping skills, problem solving techniques, solution-focused approaches and she currently is more proactive. Such therapist stated that the mother is striving for understanding in order to help her son, and that the mother is continuing in counseling. She stated that the mother intends to continue as long as necessary with her therapy.

72. Such therapist also testified that some of the biggest issues for the mother are learning to be problem-oriented and solution-focused, to see each situation as it might arise as a separate incident, to work toward a solution of and to de-escalate and minimize each such situation. Such therapist stated that prior to therapy the mother over-reacted to and escalated situations.

Such therapist also stated that the mother now understands the effect of domestic violence on Marcus. The mother's voluntary attendance at the twenty-six-week domestic violence education program was "a good thing" and demonstrates her insight and willingness to change. Such therapist believes that it is important not to minimize domestic violence incidents. Such therapist stated that the mother took responsibility for her part of the domestic violence and did not place blame on others.

73. On September 11, 2007, DCF moved to amend its TPR petition and summary of facts.

74. On September 17, 2007, the domestic violence education provider wrote the following report to the current DCF worker:

I would like to inform you that [the mother] has completed our "Stopping Domestic Violence Program" by attending the twenty-six week program. [The mother] has demonstrated her commitment to the program by her weekly attendance, active participation, excellent feedback to her peers, and respect for her facilitators. She seems to grasp the skills taught in group sessions and reports using them in her daily life. [The mother] reports that she has improved her communication skills and has learned how to effectively resolve conflict.

(Exhibit D.)

75. On November 2 and 6, 2007, Judge Wilson granted portions of separate parts of DCF's motion to amend, resulting in the grant of the entire motion. See pages 6-9, supra.

76. On November 2, 2007, the attorney for Marcus filed a motion to transfer guardianship of him to his paternal grandparents, who were and are his relative care givers. During the trial, however, such attorney did not offer any evidence in support of such motion.

77. In December 2007, the father participated in supervised visitation with Marcus. (Exhibit MM.) After the December 7, 2007, visit, the visitation specialist reported that "[o]verall the visit was good . . ." ( Id., 3). The following is set forth in such specialist's report of that visit:

. . .

4. How was the greeting?

This VS met Marcus in the parking lot and walked in the DCF lobby together and waited for his father. [The father] arrive[d] ten minutes late. Marcus was extremely excited to see his father. [The father] greeted this VS, signed in then gave his son a pat on the head and asked him how was school.

5. Did the parent bring any snacks or beverages? If yes, what did they bring?

[The father] brought McDonald's for his son, a kid's nugget meal with sprite soda.

6. Did the parents/children bring any gifts or personal items? If yes, what did they bring?

Neither [the father] nor his son brought any gifts or personal items.

7. What activities did they do?

Once settled in the visiting room, [the father] hand[ed] Marcus his lunch and they [ate] together. [The father] ma[de] conversation . . . The[y] play[ed] with the toy that came with the kid's meal (donkey from the Shrek movie); they figure[d] out the toy together playing with some cards that came with it. Marcus then turned to the other toys in the visiting room, he ask[ed] his dad to read to him but changed his mind and wanted to write and draw. [The father taught] Marcus to write his name . . . He converse[d] with his son asking him what he wanted to be when he grew up, a lawyer, doctor, go to college or even a chef. They play[ed] some more then [the father went] over the alphabet with Marcus, during such time he t[ook] the opportunity to ask Marcus what he wanted for Christmas, Marcus [The father] ask[ed] "a picture of who?" Marcus t[old] him "of you" and his dad sa[id.] ok. I suggest[ed] to [the father] (while they [went] over the alphabet) that he buy a writing pad and take to each visit and go over writing and identifying the alphabet. Marcus play[ed] with a bike in the room and [the father] play[ed] with him trying to block him by putting small toys in his path. Marcus enjoy[ed] this, then they play[ed] hide and seek with the toys, taking turns hiding toys from each other and guessing where they were. I remind[ed] them of the time and they proceed[ed] to straighten the visiting room putting back toys where they found them.

8. Positive behaviors:

[The father] engaging into play activities with his son.

9. Negative behaviors:

None to report.

10. Positive interactions:

Marcus had a cold and [the father] made sure his nose was wiped each time he sneezed. They laughed together and Marcus seems to enjoy play time with his father.

11. Negative interactions:

None to report.

12. Positive comments:

They just had general conversation.

13. Negative comments:

None to report.

14. Was there anything during the visit that stood out?

No.

15. How was the departure?

This VS reminded them of the time and they got up to put away the toys and prepare to leave. We all left and headed downstairs where [the father] made sure Marcus went in the P_______ S______ vehicle then told him he loved him, Marcus said the same.

16. Child(ren's) comments/behaviors after to the visit:

N/A

17. Overall visit? Good or bad?

Overall the visit was good.

(Exhibit MM, 1-3.)

78. For the December 14, 2007, father's visit, the visitation specialist also reported that "[o]verall the visit was good . . ." ( id., 6). The following is set forth in such specialist's report of that visit: . . .

4. How was the greeting?

This VS met Marcus in the parking lot and walked in the DCF lobby together and waited for his father. [The father] arrive[d] on time. Marcus was happy to see dad, they both exchanged hello and we headed to the visiting room.

5. Did the parent bring any snacks or beverages? If yes, what did they bring?

[The father] brought Wendy's for his son, a kid's nugget meal with sprite soda.

6. Did the parents/children bring any gifts or personal items? If yes, what did they bring?

Neither [the father] nor his son brought any gifts or personal items.

7. What activities did they do?

Once settled in the visiting room, [the father] hand[ed] Marcus his lunch and they [ate] together. [The father] ma[de] conversation with Marcus and ask[ed] him how his day was, Marcus replied "good." [The father] mention[ed] that he had the day off yesterday and he spent it resting, then he asked Marcus if he had fun yesterday with the snow, Marcus t[old] him that he made a snow ball and threw it at his grandpa then at his grandma. They continue[d] to eat as [the father] ask[ed] Marcus where he ([the father]) will be going next week. Marcus replie[d] "______," and that his grandpa will be leaving too, dad tells him grandpa will not be going. They t[ook] a bathroom break, Marcus ask[ed] dad to help him. They return[ed] and [the father] finishe[d] his lunch while Marcus explain[ed] he's had enough and was full. They then play[ed] with the toy that came with the kid's meal (stickers and cut outs with pictures of the planets). [The father told] Marcus to take them home and stick them up in his room but not to let grandma see him or else she'll get upset and laughed. They continue[d] to play with the cut outs together, dad made attempts to make a figure following direction that came with the stickers. A few minutes later Marcus lo[st] interest and turn[ed] to play with the toys in the office, his dad call[ed] him over as he found a book about ABCs and telling time, Marcus [went] over and they read together with [the father's] help quizzing Marcus on counting, recognizing the numbers, the days of the week and the months of the year. They t[ook] a break and [the father told] Marcus that his grandmother told him that she took his TV from his room because he watches only movies and no learning channels. They ma[d]e small conversations back and forth about toys and food. Marcus ask[ed] to play Pac-Man on his dad's cell phone. They then played with toy trucks, legos and a pin ball machine found in the visiting room. They spent the rest of the visit playing; [the father told] Marcus he hopes he comes home with him and asks if he remembers that they used to travel and have fun and go fishing. [The father] ask[ed] Marcus if he remember[ed] Niagara Falls in Canada and Marcus t[old] him yes.

8. Positive behaviors:

[The father] engaging into play activities with his son.

9. Negative behaviors:

None to report.

10. Positive interactions:

[The father] teaching his son to read the time, he complements him often telling him "good job" when Marcus gets the answer right.

11. Negative interactions:

None to report.

12. Positive comments:

They just had general conversation.

13. Negative comments:

None to report.

14. Was there anything during the visit that stood out?

No.

15. How was the departure?

The father looked at the time and prepared to clean the visiting room, we all then headed downstairs where he made sure Marcus was properly secured in the vehicle he was transported in. He kissed him on the forehead and told him he loved him and he'll see him in a few weeks.

16. Child(ren's) comments/behaviors after to the visit:

N/A

17. Overall visit? Good or bad?

Overall the visit was good.

Id., 4-6; see also exhibit LL for reports on other visits.

79. The mother offered the testimony of a therapist who had facilitated group sessions in which the mother's partner participated for six sessions for anger management issues. Such therapist stated that the mother's partner successfully completed the program.

80. In September 2007, the mother's partner returned to such therapist to start individual therapy. The mother's partner was referred to a psychiatrist for diagnosis. She was diagnosed with bi-polar disorder and was prescribed medication. She continued with individual therapy through July 2007, when she left to start individual therapy with another therapist. The therapist believed that the mother's partner could benefit from continued treatment. He observed, and the mother's partner reported, that the medication improved her circumstances.

81. A DCF worker who was assigned to perform investigations and studies for probate courts on custody issues was offered as a witness by the mother. He was involved from March 2006, through January or February 2007. Initially, the P_____ Probate Court sought a study concerning the mother's partner's application for the re-transfer of guardianship of her daughter to her, and eventually co-guardianship with the mother. (Exhibit N.)⁹ The mother's [UNABLE TO OBTAIN MISSING TEXT].

9 On February 14, 2006, while the father had court-ordered sole custody of Marcus, the mother obtained an ex parte order of temporary custody of Marcus from the Hartford Superior Court. The father contacted DCF and his attorney, and the order was vacated the next day on February 15, 2006:

The court hereby vacates the ex parte order of February 14, 2006 (Alvord J.) which granted sole custody of the minor child, Marcus . . ., to the plaintiff mother . . . It is further ordered that the defendant father . . . have sole custody of the above-named minor child pending the hearing on March 8, 2006 at 9:30 a.m., in courtroom B-1. It is also ordered that pending the hearing on March 8, 2006, the plaintiff [mother] shall have no visitation with the child. Police to assist with pick-up of the child.

(Exhibit SS.) This is one example of how the mother's actions and behavior thus were problematic, inter alia, from the perspective of Marcus' best interest.

82. The DCF worker observed that the mother was "more or less" guiding her partner on parenting issues, because the mother had attended a number of parenting classes and she was more confident and experienced than the partner. He viewed the mother as the "lead parent" because she was more verbally able to express herself, and because the partner was somewhat dependent on the mother for guidance and direction. He observed that the partner looked for other persons to lead.

83. Such DCF worker, who made announced and unannounced visits to the two homes occupied during the period of his involvement with the mother and her partner, stated that when he observed them Marcus and the partner's daughter were always properly dressed, there was food available for them and the homes were in good condition.

84. Ultimately, in January or February 2007, with all of the "complexity" of the mother's circumstances and the domestic violence and other incidents that had occurred, such DCF worker determined that the plan for the mother to be co-guardian of the partner's daughter was not appropriate. The DCF worker determined that neither the mother nor the partner was in a stable situation. Such worker also had determined that the mother and her partner "minimized" their domestic violence incidents, including the October 2006, incident.

85. The current DCF social work supervisor, who was assigned to this matter in March 2007, was offered as a witness by the father. She stated that she determined from the DCF record that the bruises and marks on Marcus' back that occurred in January 2007, before she became involved with the family, were non-accidental and unexplained by either parent. Because Marcus was three years old at the time of the bruises and marks, he could not, in her judgment, "really say" who inflicted the injuries, and that Marcus had "been through so much that he may not know" who inflicted the injuries. Such supervisor noted that as of the date of her testimony, February 5, 2008, Marcus had been in DCF foster care for three-quarters of his young life. She supported DCF's petition for termination of parental rights and adoption because Marcus for a second time had come into DCF care with non-accidental injuries that were not explained by either parent. She stated that DCF did not substantiate either parent for the infliction of the bruises and marks on Marcus' back because it could not determine which parent was responsible for such infliction of them, but each of the parents was "substantiated for physical neglect." The supervisor stated that if either parent had admitted his or her responsibility for the injuries, it would have been easier to work with the other parent.¹⁰ The supervisor testified that DCF needed to answer where the injuries came from, how they happened, who did them, and who was present in order to be able to provide appropriate services. Such supervisor did not believe that either parent took responsibility for either the 2007 or 2003 injuries. She stated that the father's explanation for the third bone fracture in December 2003, did not correlate with Marcus' injury.

10 From this statement, it seems that such supervisor automatically would exclude the perpetrator of such abuse from reunification services in violation of its responsibilities pursuant to General Statutes 17a-111b which requires DCF to ". . . make reasonable efforts to reunify a parent with a child unless the court after a hearing determines that such efforts are not required (which did not occur in this case). General Statutes 17a-111b provides as follows:
Sec. 17a-111b. Commissioner of Children and Families' duties re reunification of child with parent. Court determination on motion that reunification efforts are not required. Permanency plans.
(a) The Commissioner of Children and Families shall make reasonable efforts to reunify a parent with a child unless the court (1) determines that such efforts are not required pursuant to subsection (b) of this section or subsection (j) of section 17a-112, or (2) has approved a permanency plan other than reunification pursuant to subsection (k) of section 46b-129.

(b) The Commissioner of Children and Families or any other party may, at any time, file a motion with the court for a determination that reasonable efforts to reunify the parent with the child are not required. The court shall hold an evidentiary hearing on the motion not later than thirty days after the filing of the motion or may consolidate the hearing with a trial on a petition to terminate parental rights pursuant to sect on 17a-112. The court may determine that such efforts are not required if the court finds upon clear and convincing evidence that: (1) The parent has subjected the child to the following aggravated circumstances: (A) The child has been abandoned, as defined in subsection (j) of section 1 7a-112; or (B) the parent has inflicted or knowingly permitted another person to inflict sexual molestation or exploitation or severe physical abuse on the child or engaged in a pattern of abuse of the child; (2) the parent has killed, through deliberate, nonaccidental act, another child of the parent or a sibling of the child, or has requested, commanded, importuned, attempted, conspired or solicited to commit or knowingly permitted another person to commit the killing of the child, another child of the parent or sibling of the child, or has committed or knowingly permitted another person to commit an assault, through deliberate, nonaccidental act, that resulted in serious bodily injury of the child, another child of the parent or a sibling of the child; (3) the parental rights of the parent to a sibling have been terminated within three years of the filing of a petition pursuant to this section, provided the commissioner has made reasonable efforts to reunify the parent with the child during a period of at least ninety days; (4) the parent was convicted by a court of competent jurisdiction of sexual assault, except a conviction of a violation of section 53a-71 or 53a-73a resulting in the conception of the child; or (5) the child was placed in the care and control of the commissioner pursuant to the provisions of sections 17a-57 to 17a-61, inclusive.

(c) If the court determines that such efforts are not required, the court shall, at such hearing or at a hearing held not later than thirty days after such determination, approve a permanency plan for such child. The plan may include (1) adoption and a requirement that the commissioner file a petition to terminate parental rights, (2) long-term foster care with a relative licensed as a foster parent or certified as a relative caregiver, (3) transfer of guardianship, or (4) such other planned permanent living arrangement as may be ordered by the court, provided the commissioner has documented a compelling reason why it would not be in the best interests of he child for the permanency plan to include one of the options set forth in subdivisions (1) to (3), inclusive, of this subsection. The child's health and safety shall be of paramount concern in formulating such plan.

(d) If the court determines that reasonable efforts to reunify the parent with the child are not required, the Department of Children and Families shall use its best efforts to maintain the child in the initial out-of-home placement, provided the department determines that such placement is in the best interests of the child, until such time as a permanent home for the child is found or the child is placed for adoption. If the permanency plan calls for placing the child for adoption or in some other permanent home, good faith efforts shall be made to place the child for adoption or in some other permanent home.

86. Such supervisor stated that the injuries to Marcus played "a huge role" in the case. There were three unexplained separate bone fractures in 2003 and the injuries to Marcus' back in 2007. Such supervisor found the parents' failure to obtain prompt medical attention to be a common factor with respect to such injuries.

87. Such supervisor stated that prior to and after the filings of the TPR petitions in February and April 2007, DCF had made, and continued to make, reasonable efforts to provide each parent with services, treatment, psychological evaluations, and family-oriented resources. The services offered to the father included anger management group sessions and individual counseling, parenting resources and supervised visits with Marcus two hours weekly. The services to the mother included domestic violence counseling, individual counseling, parenting classes, supervised visitation, therapy for herself and her partner, and psychological evaluations. DCF also offered each parent polygraph testing by a local police department, but neither parent accepted such offer.

88. The social work supervisor stated that the mother had not been "honest and up-front" in dealing with her domestic violence issues, so she has not been able to benefit from her therapy.

89. A person who has worked with the father for approximately six years testified that the father was and is a kind, generous, caring, soft-spoken person who properly cared for his children and who is a good person and a good friend.

90. The father's therapist testified that he had taken two six-session anger management courses approximately one year apart at DCF's request. In May 2007, the father began individual counseling. The father is continuing with individual counseling. The therapist did not have any concerns about the father's mental health status. (Exhibit TT.)

91. Neither the father nor the mother explained to DCF the causes of the non-accidental 2003 three bone fractures and the 2007 bruises and marks on Marcus' back. Neither the father nor the mother were able to rebut the professional, medical determinations that such injuries were most likely non-accidental.

92. Additional facts are set forth infra. Unless otherwise specified, all facts set forth in this decision are found by clear and convincing evidence.

93. From the evidence before this court, this court finds that the mother is responsible for the three fractures suffered by Marcus in 2003, and for the injuries to and bruises on Marcus' back in January 2007.

In his first evaluation, the psychological evaluator observed the mother's significant level of emotional and cognitive disturbance as well as her problems in social relatedness and social perception. See page 34, supra. The reports from AMPS, the supervised visitation provider, noted the mother's rough behavior toward Marcus, and his unwillingness to be held by her. See pages 35 and 37, supra. The evaluator reported:

The father is still doing better with Marcus than the mother. Marcus is also more responsive with the father and always has been. Marcus has never wanted to be held by mom. On the first day, Marcus reached out to the father almost immediately after being with him in the room and still does so. He is observed to even move toward the father's voice before sight contact is made. Last week Marcus tried to leave the room and to follow the transporter, Rick though he was in the room with the mother at the time, and did not want to stay with her.

The mother lacks emotional responsiveness to the child. She has not yet started any treatment. The mother has variable presentations — stoic, script-like, and mechanical on some occasions, and on others friendly and more interactive with Marcus. The mother has also been observed to be rough with Marcus on two occasions. On one day she held him and was cuddling him and tucked his arm behind her back, and it appeared to Ms. T______ that she was pinning him to her so he couldn't move. When Ms. T______ pointed this out to her, she reached and jerked his arm out from behind her back and forward in a very rough manner. A__ T_____ was surprised and concerned. Later that same day the mother could not get the child to sit still in order to tie his sneaker so she put him between her legs, pressed him back against her, leaned over him with her shoulders, and pinned him to her as she tied the sneakers. He was unable to move. A__ T_____ told her that she could have broken his bones and found the mother unresponsive to this observation and admonishment.

He still does not like to be held by his mother but snuggles right up to his father.

(Exhibit 19, 6-7; see page 37, supra.) (Emphasis supplied.)

The evaluator opined that the mother was the more likely suspect as the abuser of Marcus:

This remains a puzzling case. The child has been injured, the injury was considered non-accidental, was discovered by the father when the mother was at work, and the mother is reported to have acted properly by coming home promptly to see what was wrong. It appears that the father deferred to the mother by the nature of the stories that they told. The father seems to accept responsibility for causing the child's injury though he is not able to produce any information that might show how he did so. His acceptance of responsibility is therefore theoretical rather than actual. It is as if he were responding to a hypothetical question by saying yes, it must have been me since I was there, while the mother responds to the same hypothetical question by saying no, it wasn't me since I wasn't there. The only other person who was there was Marcus. He is not verbal and able to give an event report. Some might be inclined to respond to his behavior as an indication not only of where his attachments and preferences lie, but also where his aversions are, and the documentation of aversion might be read as indicating where a trauma source lies. In that event, it would be the mother who would be suspected of having caused the injury since there are obvious contact problems between herself and her son . . .

(Exhibit 19, 6-7; see page 36, supra.) (Emphasis supplied.) DCF concurred. See page 15, supra.

The mother separated from the father for a relationship with a woman with a history of domestic violence, including domestic violence with a previous partner. See page 27, supra. The mother then had a multi-year relationship with such woman marked by incidents of serious domestic violence. See pages 11-13, 18-24, supra. The mother continued this relationship despite her own admission that on October 24-25, 2004, she had been physically abused by and had her clothes ripped off by her partner, and had been threatened by the partner with a knife:

I took a sworn statement from [the mother] in which she detailed the incident. (The mother] said the incident started between 10:00 P.M. and 11:00 P.M. on 10/24/04 and she explained how T_____ had pinched her and she told T_____ to stop, but she didn't. T______ had pushed [the mother] and she fell off the bed and hit her head. The fight continued and at one point T______ charged at [the mother] and [the mother] put her arms up to keep T______ away and T_____ ended up falling and that's how she cut her head. Between midnight and 1:00 A.M. on 10/25/04 was in the living room on the couch and T_____ came in and grabbed W_____ by the throat and ripped her clothes off. T______ had a knife and began tracing the blade along W______'s skin until . . . she nicked W______'s thigh with the blade. At about noon on 10/25/04 another altercation started while they were in the bathroom. T_____ was choking [the mother] and they lost balance and fell into the tub and [the mother] hit her nose on part of T______, maybe her head.

I asked [the mother's] doctor to verify if she had a cut on her thigh. The doctor checked and told me there was no cut.

Officer K___ called me and told me that T______ said that [the mother] was suicidal and had taken many pills and written a suicide note prior to going to the hospital. I asked [the mother] about this and she claimed that she was not suicidal. She said that T_____ had held a knife to her throat and forced her to take the pills and write the suicide note. T______ told [the mother] she would she would kill her if she did not take the pills.

(Exhibit 29, 1-3.)

Two years later, on October 14, 2006, the police were called by the mother's neighbors because of the continuing domestic violence between the mother and her partner:

I entered her apartment, where I spoke to C____ K_______ of 57 V_____ 2nd floor and T___ S_____ of 57 V_____ Street unit 4. They were both in the same apartment and they both explained that this fighting has been non-stop since [the mother] and S_______ moved in two months ago and today the fighting as been going on since 11:00 a.m. and continued throughout the day. They explained that it got out of control when the entire building was shaking because of them physically fighting and screaming things like "Get off me" anD "I'm gonna kill you." Both C____ and T____ explained that they live here and didn't really want to deal with their ([the mother] and S______) wrath and just wanted to give this information verbally to the police. They explained that they normally would never call the police, but this wAs out of control. They also said they didn't know if the children were there, being exposed to this, so that's why they called.

(Exhibit 17, 1-4; see page 21, supra)

The police officer both observed and spoke to the mother who in part minimized the domestic violence that had occurred between her and her partner:

I returned to the kitchen, where I now noticed that [the mother] had some blood spots on her shirt. I asked her about them and also now noticed she had a bloody lip. She said she had no idea how her lip became bloody. I asked her if her lips often "spontaneously" bleed. She said "only in the winter when they are dry." I commented to her that her lips were neither chapped nor dry and she still was unable to explain the bloody lip. I asked about the curtain and window blinds and she said that she had opened the door and they must have fallen down. I asked her to explain why we got called to their house and [the mother] explained that she and S________ had been arguing, mostly about money and S______'s anger issues and that must have bothered the neighbors. I asked [the mother] if they fight often, and she said more than she would like and she was actually trying to set up counseling for them on Monday. I again asked her about the bloody lip and she still had no response for it. I asked [the mother] about the hole in the wall in the bedroom and she said that she was too embarrassed to explain. I told her to try explain it because it was important. She told me that a little while ago S________ was trying to make up with her and was kissing her and [the mother] didn't want her to so she pushed S________ off her and they both fell into the wall. She said they didn't get hurt and they will repair the damages. I observed that there was a room right off the kitchen that had kid's beds in it. I asked where the children were. [The mother] said her child was with her baby's father and that S________'S child was with S______'s aunt. I asked Ofc. D______ to stand with [the mother] while I went back and spoke with S_______ again.

See page 20, supra.

When the mother appeared in court on the criminal charges, a protective order was entered prohibiting her from the apartment. However, on January 29, 2007, the mother admitted to the DCF investigator that she had been living in the family home in violation of the protective order and that she had been caring for her partner's daughter.

Prior to her January 29, 2007, admission to such investigator, the mother also had lied to the police, to the court and to DCF. The mother's lies to the police related to her partner's false claim of first degree sexual assault, a class A or B felony, see General Statutes 53a-70, et seq. See also exhibit 27. The police engaged in an extensive investigation of the claim before determining it was false, and the mother eventually admitted that the claim was false. See Exhibits 22, 23, 24, and 25; page 17, supra:

. . . On March 13, 2006, the officer ". . . explained to both [the partner] and [the mother] that making a false complaint is a criminal offense and that [he] would be applying for an arrest warrant for both of them . . . Initially, [the mother] denied that this was a false complaint, but eventually she admitted that the complaint was false." Id. The mother explained why she and her partner had made the false complaint. Id., 9-10.

Page 17, supra.

On August 24, 2006, the mother wrote a letter of apology to the police department. (Exhibit 28.)

Earlier, in February 2006, the mother had made misrepresentations to the court in order to obtain an ex parte custody order granting her sole custody of Marcus despite another court order granting the father sole custody. SeE page 52, footnote 7, supra.

In October 2006, the mother reported to DCF that the father had burned Marcus with a cigarette and that the father brought him to the Head Start program with a temperature. DCF did not substantiate the mother's claims. Additionally, the mother lied to DCF regularly about her relationship with her partner, about the level of domestic violence in such relationship, and to DCF and to doctors about her alleged lack of involvement in Marcus' injuries.

Over a period of years the mother has been physically abusive; has minimized her behavior involving domestic violence and the serious issues it presents concerning the safety and welfare of Marcus; has been untrustworthy in that she voluntarily lied to the police, misrepresented to the court, lied to DCF and to doctors. She has not admitted her responsibility for the serious injuries suffered by Marcus, and thus she has not established a necessary precondition to successful therapy treatment or to rehabilitation.

LAW APPLICABLE TO NEGLECT CASES: 1. Definition of neglect:

The grounds for an adjudication of neglect alleged by DCF in this case are based on General Statutes § 46b-120:

. . . (9) a child or youth may be found "neglected" who . . . (B) is being denied proper care and attention, physically, educationally, emotionally or morally, or (C) is being permitted to live under conditions, circumstances or associations injurious to the well-being of the child or youth . . .

"`Neglect . . . is the failure to exercise the care that the circumstances justly demand. It embraces wilful as well as unintentional disregard of duty. It is not a term of fixed and measured meaning. It takes its context always from specific circumstances and its meaning varies as the context of surrounding circumstances changes.' (Internal quotation marks omitted.) The Honorable Thomas D. Gill, `The Legal Nature of Neglect' . . .," Randall v. Dunbar, No. CV 04 0525159 S, Superior Court, Judicial District of New Britain at New Britain (Murray, J., December 29, 2004) [38 Conn. L. Rptr. 468].

Neglect also has been generally defined as "the failure, whether intentional or not, of the person responsible for the child's care to provide and maintain adequate food, clothing, medical care, supervision and/or education." State of Connecticut DCF website, operational definitions. The following are set forth as "examples of physical neglect: 1. the failure to provide adequate food, shelter, and clothing appropriate to the climactic and environmental conditions[;] 2. the failure to provide, whether intentional or not, supervision or a reliable person(s) to provide child care[;] 3. leaving a child alone for an excessive period of time given the child's age and cognitive abilities[;] 4. holding the child responsible for the care of siblings or others where beyond the child's ability[;] 5. the person responsible for the child's care displays erratic or impaired behavior[;] 6. the person responsible for the child's care is unable to consistently perform the minimum of child-caring tasks[; and] 7. death." There are additional examples set forth in the DCF operational definitions of educational, emotional and moral neglect. See also In re Cameron W., F04-CP04-006236-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Wilson, J., December 28, 2006).

2. The nature of a neglect proceeding:

A neglect petition has been described as sui generis, and as "not a typical civil action." In re Allison G., 276 Conn. 146, 158, 883 A.2d 1226 (2005). The purpose of neglect and uncared for proceedings are to insure the child's safety and to secure a permanent placement for such child "as expeditiously as possible," whether such placement is with one or both parents, biological relatives, foster care or an institutional setting. Id. In In re Allison G., the primary issue was whether the trial court judge properly dismissed the neglect allegations of the DCF petition over the objection of DCF after the parents agreed to plead no contest to the uncared for allegations of such petition, and after the parents agreed to the relief sought by DCF, e.g., commitment of the child to the care, custody and guardianship of DCF. The Court set forth some "general observations":

In considering this issue, we begin with some general observations about the context in which this claim arises. A neglect petition and concomitant request for an order of commitment are not a typical civil action. "A neglect petition is sui generis and, unlike a complaint and answer in the usual civil case, does not lead to a judgment for or against the parties named." In re David L., 54 Conn.App. 185, 191, 733 A.2d 897 (1999). In such proceedings, the petitioner acts not to vindicate her personal rights but, acting for the state as parens patriae, to ensure, first and foremost, the child's safety and, second, a permanent placement of the child as expeditiously as possible. In re Joshua S., 260 Conn. 182, 196-97 n. 15, 796 A.2d 1141 (2002); In re Jason C., 255 Conn. 565, 576-77, 767 A.2d 710 (2001); In re Jonathan M., 255 Conn. 208, 231-32, 764 A.2d 739 (2001). The petitioner [DCF] does not seek the monetary or equitable relief of a typical civil action, but, rather, actions by the court that will further the dual goals of safety and permanency. Accordingly, "relief" in this context takes on a somewhat different meaning, and the petitioner's interests in seeking an adjudication and disposition upon filing a neglect petition do not fit neatly within the aggrievement rubric. See In re David L., supra, 191-93 (distinguishing between significance of adjudication and disposition of neglect petition).

In re Allison G., supra, 276 Conn. at 158-59.

In In re Allison G., the Supreme Court recognized that "[t]he focal point of a neglect petition is not condemnation of the parents, but, rather, the status of the child." In re Allison G., supra, 276 Conn. at 164. Such court also noted that the status of the child "is determined as a result of the adjudication, not the disposition of the petition." Id. Such court also stated:

An adjudication of neglect that results in an order of commitment necessarily implies that the neglect occurred due to some action or inaction on the part of the custodial parents. A finding to that effect does not serve merely a punitive purpose, as suggested by the trial court. Rather, the parents' willingness thereafter to accept responsibility reasonably may bear on whether reunification or termination of parental rights is in the child's best interest . . .

In re Allison G., supra, 276 Conn. at 164.

In In re Allison G., supra, 276 Conn. at 153 n. 4, the court ". . . underscore[d] the importance of an adjudication of both counts of the petition . . .," e. g., both the neglect and uncared for counts.

3. Neglect standards:

Pursuant to C.G.S. § 46b-129, neglect trials are comprised of two parts, adjudication and disposition. In re Brianna C., 98 Conn.App. 797, 801 (2006). Conn. Practice Book § 35a-7 also provides:

(a) In the adjudicatory phase, the judicial authority is limited to evidence of events preceding the filing of the petition or the latest amendment . . .

(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 Brianna C., supra, 98 Conn.App. at 805, the Appellate Court explained this court's disposition options as follows:

After an adjudication of neglect, a court may

(1) commit the child to the commissioner,

(2) vest guardianship in a third party or

(3) permit the parent to retain custody with or without protective supervision. General Statutes § 46b-129(j) . . .

In determining the disposition portion of the neglect proceeding, the court must decide which of the various custody alternatives are in the best interest of the child. "To determine whether a custodial placement is in the best interest of the child, the court uses its broad discretion to choose a place that will foster the child's interest in sustained growth, development, well-being, and in the continuity and stability of [the child's] environment." (Internal quotation marks omitted.) In re Haley B., 81 Conn.App. 62, 67, 838 A.2d 1006 (2004). At trial, the commissioner had the burden of proving by a fair preponderance of the evidence that it was in the child's best interest to be committed to the commissioner rather than to remain with the respondent. See id., 65.

C.G.S. § 46b-129(j) sets forth the court's authority to commit a child:

. . . (j) Upon finding and adjudging that any child or youth is uncared-for, neglected or dependent, the court may commit such child or youth to the Commissioner of Children and Families. Such commitment shall remain in effect until further order of the court, except that such commitment may be revoked or parental rights terminated at any time by the court, or the court may vest such child's or youth's care and personal custody in any private or public agency that is permitted by law to care for neglected, uncared-for or dependent children or youths or with any person or persons found to be suitable and worthy of such responsibility by the court. The court shall order specific steps that the parent must take to facilitate the return of the child or youth to the custody of such parent. The commissioner shall be the guardian of such child or youth for the duration of the commitment, provided the child or youth has not reached the age of eighteen years or, in the case of a child or youth in full-time attendance in a secondary school, a technical school, a college or a state-accredited job training program, provided such child or youth has not reached the age of twenty-one years, by consent of such youth, or until another guardian has been legally appointed, and in like manner, upon such vesting of the care of such child or youth, such other public or private agency or individual shall be the guardian of such child or youth until such child or youth has reached the age of eighteen years or, in the case of a child or youth in full-time attendance in a secondary school, a technical school, a college or a state-accredited job training program, until such child or youth has reached the age of twenty-one years or until another guardian has been legally appointed. The commissioner may place any child or youth so committed to the commissioner in a suitable foster home or in the home of a person related by blood to such child or youth or in a licensed child-caring institution or in the care and custody of any accredited, licensed or approved child-caring agency, within or without the state, provided a child shall not be placed outside the state except for good cause and unless the parents or guardian of such child are notified in advance of such placement and given an opportunity to be heard, or in a receiving home maintained and operated by the Commissioner of Children and Families . . .

If commitment is ordered, the court also orders specific steps for reunification:

We first note that the commitment in this case is not one of "permanency," such as a judgment of termination of parental rights, but one that requires, pursuant to § 46b-129(j), the court to "order specific steps which the parent must take to facilitate the return of the child or youth to the custody of such parent."^fn8

In re Brianna C., supra, 98 Conn.App. at 805.

In such footnote 8 in Brianna C., the court noted that the trial court ordered many specific steps for reunification:

. . . the specific steps were many, including unannounced visits to the respondent and the child by department workers, attendance at parenting classes, individual and domestic counseling, and protective orders against the child's father to safeguard the child.

Id.

If the court orders that a child be committed to the care, custody and guardianship of DCF, the court must also find that DCF made reasonable efforts to keep the children in the home, or that such efforts were not possible:

The respondent also claims that the court abused its discretion when it found that the department had made reasonable efforts to keep the child with the respondent before seeking custody of the child. The last sentence of § 46b-129(j) provides in relevant part: "Upon the issuance of an order committing the child or youth to the [commissioner], or not later than sixty days after the issuance of such order, the court shall make a determination whether the [department] made reasonable efforts to keep the child or youth with his or her parents or guardian prior to the issuance of such order . . ."

In re Brianna C., supra, 98 Conn.App. at 806-07.

The full relevant language in § 46b-129(j) is as follows:

Upon the issuance of an order committing the child or youth to the Commissioner of Children and Families, or not later than sixty days after the issuance of such order, the court shall make a determination whether the Department of Children and Families made reasonable efforts to keep the child or youth with his or her parents or guardian prior to the issuance of such order and, if such efforts were not made, whether such reasonable efforts were not possible, taking into consideration the child's or youth's best interests, including the child's or youth's health and safety.

In connection with determining the disposition of a neglect case, the court looks at the full picture of the family circumstances, including the full history of each parent's parenting abilities, to determine whether either parent can and will ". . . foster the [child's] growth, development and well-being . . ." Gil v. Gil, 94 Conn.App. 306, 322, 892 A.2d 318 (2006). In the Gil case, a dissolution of marriage case, 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).

In In re Jennifer W., 75 Conn.App. 485, 499, 816 A.2d 697 (2003), cert. denied 263 Conn. 917, 821 A.2d 770 (2003), a termination of parental rights case, the duty of the trial court was set forth as follows:

. . . 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).

As in any case involving the determination of custody, the touchstone for such dispositional decision is the court in the best interest of the child:

Generally, questions of custodial placement are resolved by a determination of "what is in the best interest of the child . . . as shown by a fair preponderance of the evidence." (Citations omitted.) In re Shyina B., 58 Conn.App. 159, 163, 752 A.2d 1139 (2000). "The trial court is vested with broad discretion in determining what is in the child's best interests." (Internal quotation marks omitted.) In re Joshua S., 260 Conn. 182, 209, 796 A.2d 1141 (2002) . . .

In re Haley B., 81 Conn.App. 62, 65 (2004).¹¹

11 But see Fish v. Fish, 285 Conn. 24, 81, 89-90 (2008) with respect to custody awards to a third party, whether or not a relative:

. . . In the present case, we believe that it has because, to the extent that this court has placed a judicial gloss on the standard of harm set forth in § 46b-56b, courts will have clear notice that third-party custody awards may not be based on a few instances of misconduct, that such awards are justified only in exceptional circumstances and that the petitioner must allege and prove, at the very least, that continued parental custody will be clearly damaging, injurious or harmful to the child. This is a heavy burden under either standard of proof. See McGaffin v. Roberts, supra, 193 Conn. 412 (Parskey, J., dissenting) (burden on nonparent to disprove presumption in favor of parental custody is "a heavy one").

. . .
To summarize, in cases in which a third party seeks to intervene in a custody proceeding brought pursuant to § 46b-56(a), the party must prove by a fair preponderance of the evidence facts demonstrating that he or she has a relationship with the child akin to that of a parent, that parental custody clearly would be detrimental to the child and, upon a finding of detriment, that third-party custody would be in the child's best interest. In cases in which the trial court considers awarding custody to a third party who has not intervened pursuant to § 46b-57, the court may award custody to the third party provided that the record contains proof of the foregoing facts by a fair preponderance of the evidence.
. . .
In the present case, the trial court failed to apply the correct standard when it granted (paternal aunt's] motion to intervene and awarded her custody solely on the basis of the best interest of the child.

As set forth above, and pursuant to Practice Book § 32a-3(a), the standard of proof applied in a neglect, uncared for or dependency proceeding is a fair preponderance of the evidence. In In re Brianna C., supra, 98 Conn.App. at 801, the Appellate Court confirmed that "[t]he burden of proof is on the petitioner to show by a fair preponderance of the evidence that removal of a child from his or her home is warranted. In re Juvenile Appeal (83-CD), 189 Conn. 276, 293-95, 455 A.2d 1313 (1983)." Later in such decision, the Appellate Court reiterated:

The standard of proof applicable to nonpermanent custody proceedings, such as neglect proceedings, is a fair preponderance of the evidence. In re Juvenile Appeal (84-AB), 192 Conn. 254, 263, 471 A.2d 1380 (1984); Practice Book § 32a-3(a).

In re Brianna C., supra, 98 Conn.App. at 802.

Specifically with respect to dispositional matters, the same burden of proof applies:

At trial, the commissioner had the burden of proving by a fair preponderance of the evidence that it was in the child's best interest to be committed to the commissioner rather than to remain with the respondent. See id., 65. On appeal, we must determine whether there was sufficient evidence before the court so that it reasonably could find, by a fair preponderance of the evidence, that the best interest of the child was to commit custody of her to the commissioner, with eight hours daily of unsupervised visits with the respondent.

In re Brianna C., supra, 98 Conn.App. at 804-05.

4. The meaning of "fair preponderance of the evidence":

As set forth above, the standard of proof in a neglect case is the "fair preponderance of the evidence."

Such standard has been defined as follows:

"Fair preponderance of the evidence" was properly defined as "the better evidence, the evidence having the greater weight, the more convincing force in your mind." The court charged that the standard had been satisfied with respect to a fact if all the evidence considered fairly and impartially evince[d] a reasonable belief that it [wa]s more probable than not that the fact [wa]s true.

Cross v. Huttenlocher, 185 Conn. 390, 394-95, 440 A.2d 952 (1981); see also Konover Development Corp. v. Zeller, 228 Conn. 206, 230, 635 A.2d 798 (1994).

The Connecticut Supreme Court has previously determined that in temporary custody and neglect proceedings application of the fair preponderance standard satisfies constitutional requirements:

Moreover, this court determined more than two decades ago that the fair preponderance standard is constitutionally permissible in temporary custody and neglect proceedings because the child's welfare and safety represents a strong countervailing interest in relative equipoise with the liberty interest of the parent. See In re Juvenile Appeal (83-CD), supra, 189 Conn. 287 (when child's interest no longer coincides with that of parent, magnitude of parent's right to family integrity is diminished); see also In re Juvenile Appeal (84-AB), 192 Conn. 254, 263-64, 471 A.2d 1380 (1984).

Fish v. Fish, supra, 285 Conn. at 73-74.

5. Best interests of the child in a neglect case:

As set forth above, with respect to disposition after an adjudication that a child is neglected or uncared for, ". . . the court must decide which of the various custody alternatives are in the best interest of the child . . ." In re Brianna C., supra, 98 Conn.App. at 805. In doing so, ". . . the court uses its broad discretion to choose a place that will foster `the child's interest in sustained growth, development, well-being, and in the continuity and stability of its environment.'" In re Haley B., supra, 81 Conn.App. at 67.

In deciding what is in the best interest of the child, the trial court "is vested with broad discretion." In re Alexander C., 60 Conn.App. 555, 559, 760 A.2d 532 (2000). The Appellate Court explained the basis for such broad discretion in the trial court as follows:

". . . The trial court had the advantage of observing the parties and witnesses. [T]he authority to exercise the judicial discretion under the circumstances revealed by the finding is not conferred upon this court, but upon the trial court, and . . . we are not privileged to usurp that authority or to substitute ourselves for the trial court . . . A mere difference of opinion or judgment cannot justify our intervention. Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference." (Internal quotation marks omitted). Kearney v. State, 174 Conn. 244, 252, 386 A.2d 223 (1978). "In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did." (Internal quotation marks omitted.) Simmons v. Simmons, 244 Conn. 158, 175, 708 A.2d 949 (1998); Ignacio v. Montana-Ignacio, 57 Conn.App. 647, 648, 750 A.2d 491 (2000).

Id., 559-60; see also In re Patricia C., 93 Conn.App. 25, 33, 887 A.2d 929 (2005) (such a deferential standard of review is appropriate).

A child's best interests include the child's interest in health and safety, General Statutes § 46b-129(j), in sustained growth, development, well-being, and in the continuity and stability of its environment, see page 73, supra. These factors are also considered and applied in termination of parental rights dispositions, In re Joseph L., 105 Conn.App. 515, 529 (2008), and in revocation of commitment cases, In re Cameron C., 103 Conn.App. 746, 759, 930 A.2d 826 (2007).

LAW APPLICABLE TO TERMINATION OF PARENTAL RIGHTS CASES: CT Page 3399

General Statutes § 17a-93 and General Statutes § 45a-707(8) provide:

"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 . . .

1. Prerequisites to a TPR determination, and the statutory grounds alleged by the petitioner DCF:

General Statutes § 17a-112(j)(3) provides that the prerequisites to a determination that any TPR petition should be granted are that the court must find by clear and convincing evidence

(1) that [DCF] has made reasonable efforts to locate the parent and to reunify the child with the parent in accordance with subsection (a) of section 17a-111b, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts, except that such finding is not required if the court has determined at a hearing pursuant to section 17a-111b, or determines at trial on the petition, that such efforts are not required . . .

and that

(2) termination is in the best interest of the child . . .

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. In re Davonta V., 98 Conn.App. 42, 43 (2006), affirmed, 285 Conn. 483 (2008); In re Shaun B., 97 Conn.App. 203, 214, 903 A.2d 246 (2006); In re Brea B., 75 Conn.App. 466, 473, 816 A.2d 707 (2003).

The grounds alleged in this case are:

. . . (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; (C) the child has been denied, by reason of an act or acts of parental commission or omission including, but not limited to, sexual molestation or exploitation, severe physical abuse or a pattern of abuse, the care, guidance or control necessary for the child's physical, educational, moral or emotional well-being, except that nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights . . .

(General Statutes § 17a-112(j)(3).)

In In re Cheyenne A., 59 Conn.App. 151, 158-59 (2000), the above phrase, "prima facie evidence," was explained as follows:

"The phrase prima facie evidence means evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove." (Internal quotation marks omitted.) State v. Watson, 165 Conn. 577, 595-96, 345 A.2d 532 (1973), cert. denied, 416 U.S. 960, 94 S.Ct. 1977, 40 L.Ed.2d 311 (1974).

"Prima facie evidence" has also been defined as "evidence sufficient to establish a fact or to raise a presumption of fact unless rebuffed." Random House Unabridged Dictionary, Copyright © 1997, by Random House, Inc. A slightly different definition of prima facie evidence is set forth in The American Heritage® Dictionary of the English Language: Fourth Edition, 2000:

Evidence that would, if uncontested, establish a fact or raise a presumption of a fact.

The phrase also is used in other statutes. See, by way of examples, the following:

1. Young v. Vlahos, 103 Conn.App. 470, 483, 929 A.2d 362 (2007):

General Statutes § 47a-26b(c) provides in relevant part that "[t]he last agreed-upon rent shall be prima facie evidence of the fair rental value of the premises. The party claiming a different amount shall have the burden of proving that the last agreed-upon rent is not the fair rental value . . ."

The defendant has offered no evidence that the agreed upon rent in this case was not the fair rental value of the premises . . .

2. Acmat Corp. v. Greater New York Mutual Insurance Co., 282 Conn. 576, 593, 923 A.2d 697 (2007):

. . . see also, e.g., General Statutes § 38a-274 (Reasonable attorneys fees are available in an action against an unauthorized insurer if its refusal to make a payment was "vexatious and without reasonable cause . . . Failure of the person or insurer to defend any such action shall be deemed prima facie evidence that its failure to make payment was vexatious and without reasonable cause.") . . .

and

3. Durso v. Vessichio, 79 Conn.App. 112, 123-24 (2003) (footnote omitted):

In this case, the defendant failed to challenge the existence of a joint bank account, or the existence of fraud or undue influence, and our review of the record indicates that she produced no such evidence. In the absence of evidence of fraud or undue influence, the establishment of the bank account in the names of Salvatore Vessichio, Sally Ann Durso and Charlene Vessichio is prima facie evidence, pursuant to § 36a-290(b), of Salvatore Vessichio's intention to vest title in both the plaintiff and the defendant on his death. Our review of the record and briefs reveals that the defendant made no attempt at trial to rebut the presumption of ownership set forth in § 36a-290(b). The court therefore correctly determined, on the basis of § 36a-290(b), that the plaintiff had survivorship rights in the proceeds of the joint bank accounts.

A similar phrase, "prima facie proof," has been explained as follows:

"A rebuttable presumption is equivalent to prima facie proof of a fact and can be rebutted only by the opposing party's production of sufficient and persuasive contradictory evidence that disproves the fact that is the subject of the presumption . . . A presumption requires that a particular fact be deemed true until such time as the proponent of the invalidity of the fact has, by the particular quantum of proof required by the case, shown by sufficient contradictory evidence, that the presumption has been rebutted." (Citation omitted.) Schult v. Schult, 40 Conn.App. 675, 684, 672 A.2d 959 (1996), aff'd, 241 Conn. 767, 699 A2d 134 (1997).

Fish v. Fish, supra, 285 Conn. at 46, fn 21. See also pages 92-94, infra.

Despite the order in General Statutes § 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), cert. denied 280 Conn. 924 (2006), the Appellate Court 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.)

In Halle T., the Appellate Court explained the foregoing finding requirement concerning a parent's level of rehabilitation to assume a responsible position in the child's life 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 G., 56 Conn.App. 12, 17-18, 740 A.2d 496 (1999).

In re Halle T., supra, 96 Conn.App. at 835-36. The same point is also set forth in In re Shyliesh H., 56 Conn.App. 167, 179-80, 743 A.2d 165 (1999) and in In re Danuael D., 51 Conn.App. 829, 840, 724 A.2d 546 (1999).

In Halle T., the Appellate Court also referred to Supreme Court statements of the applicable standard:

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 in each case of the factual context of the child's circumstances:

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 despite a parent's progress toward personal rehabilitation the parent had not rehabilitated 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 addition to Sheila J., 62 Conn.App. 470, 481, 771 A.2d 244 (2001) (" . . . In effect, however, the court determined that although the respondent demonstrated some efforts and had taken some steps toward rehabilitation, those efforts were too little and too late . . ."), the Appellate Court has upheld other trial court findings of rehabilitation efforts being "too little, too late . . .": see In re Brittany J., 100 Conn.App. 329, 335, 917 A.2d 1024 (2007) (" . . . The court also found the testimony of James Connolly, a court-appointed psychologist, to be more credible on this issue and noted that the respondent's `recent cooperation with her psychotropic medication regimen on the eve of trial is `too little, too late' . . .'") and In re Dorrell R., 64 Conn.App. 455, 780 A.2d 944 (2001).

Although the court can consider rehabilitation efforts happening after the filing of the TPR petition, see pages 89-90, infra, it does not have to do so, and the court can determine that from the perspective of the age, needs and circumstances of the child that those efforts are not timely:

The court found by clear and convincing evidence that the respondent is unable or unwilling to make realistic and sustained efforts to conform her individual conduct to acceptable parental standards. The department made numerous referrals for the respondent during the pendency of this case. The respondent failed to take advantage of the referrals in a timely manner, and it was not until the filing of the termination petitions that she demonstrated any willingness to address her problems. The respondent has not made the changes necessary in her lifestyle in a timely manner that would indicate that she would be a safe, responsible and nurturing parent for the children.

In re Anthony H., 104 Conn.App. 744, 758 (2007).

The presence of a "strong loving bond" or a "strong bond" between a parent and a child in and of itself may not be sufficient to prevent termination of parental rights. In the Anthony H. decision, the Appellate Court considered substantive issues that kept the mother from "being a responsible parent to the children" despite a claim of a "strong loving bond":

The respondent also argues that the court's finding that she had failed to achieve rehabilitation is clearly erroneous because she has a strong loving bond with her children. The respondent relies on dicta in In re Jessica M., 49 Conn.App. 229, 714 A.2d 64 (1998), appeal dismissed, 250 Conn. 747, 738 A.2d 1087 (1999), to support her position. "[T]o the extent the parents can demonstrate to [the child] that they care about her and love her, they have a responsible position in her life." Id., 240. The respondent claims that she has a responsible position in the lives of the children by virtue of her strong loving bond with them. The respondent's argument founders because she has multiple issues that prevent her from being a responsible parent to the children, such as failing to provide appropriate and reliable housing, failing to maintain employment and failing to keep them safe from R, who is abusive and has substance abuse problems, among other concerns.

In re Anthony H., supra, 104 Conn.App. at 762-63 (footnotes omitted). See also In re Anna Lee M., supra, 104 Conn.App. at 124, 143-44; In re Brittany J., supra, 100 Conn.App. at 333, 336-37; In re Tyqwane K., 85 Conn.App. 528, 533, 535-36 (2004). In a recent case, former Justice Peters observed:

The sad fact is that there is a difference between parental love and parental competence.

In re Christina M., 90 Conn.App. 565, 575, 877 A.2d 941, affirmed, 280 Conn. 474, 908 A.2d 1073 (2006).

The Appellate Court has stated that evaluating whether there has been sufficient parental rehabilitation the trial court must consider the full 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. denied, 263 Conn. 917, 821 A.2d 770 (2003); see also In re Victoria B., 79 Conn.App. 245, 254, 829 A.2d 855 (2003). In an earlier decision, In re Tabitha P., 39 Conn.App. 353, 361, 664 A.2d 1168 (1995) the Appellate Court expressed this requirement as follows:

. . . Thus, the trial court's inquiry requires the determination of both the present and past status of the child, and obtaining a historical perspective of the respondent's child caring and parenting abilities . . .

In a very recent decision, the Appellate Court has expressed the trial court's duty to consider the "entire picture" of the parent-child relationship:

In order for the court to make a determination as to the respondent's prospects for rehabilitation, the court was required to obtain "a historical perspective of the respondent's child caring and parenting abilities." In re Tabitha P., 39 Conn.App. 353, 361, 664 A.2d 1168 (1995). "Because the parent-child relationship is at issue, all relevant facts and family history should be considered by the trial court when deciding whether to terminate the respondent's parental rights . . .

The parent-child relationship presents an ongoing dynamic that cannot be frozen in time. The entire picture of that relationship must be considered whenever the termination of parental rights is under consideration by a judicial authority." In re Brianna F., 50 Conn.App. 805, 814, 719 A.2d 478 (1998). Finally, "[t]o preclude consideration of the facts existing at the time of [a prior termination of parental rights proceeding] would not allow for a comprehensive analysis of the parent-child relationship." Id., 818.

In re Anna Lee M., 104 Conn.App. 121, 123 (2007), cert. denied, 284 Conn. 939 (2007).

In a dissolution of marriage context the requirement of an inquiry into the full history of the parents' "past behavior" in order to evaluate parenting ability 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) (internal quotations omitted).

This court, however, cannot speculate about a parent's chances for future rehabilitation by assuming that a parent successfully would complete a parenting-related program. In In re Selena O., 104 Conn.App. 635, 642-43 (2007), the trial court found that the mother could be rehabilitated within a reasonable period of time in the future. The Appellate Court determined that the trial court's findings were based on facts that were not in evidence, and on a fact that did not exist. Id., 648-49. The trial court's findings were speculative, material to its decision and clearly erroneous. Id.

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 § 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, 748-49, 789 A.2d 1024 (2002), the Appellate Court explained the language of Conn. Practice Book § 33-3(a), the predecessor of § 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 § 33-3(a) and case law regarding termination proceedings generally, we have determined that with regard to termination petitions brought under § 17a-112(c)(3)(B) [now § 17a-112(j)(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 § 17a-112(c)(3)(B). Id., 225, 763 A.2d 83. In our explanation of the requirements of § 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.) Id., 230. 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.

See also In re Joseph L., 105 Conn.App. 515, 527-28 (2008); and In re Anthony H., supra, 104 Conn.App. at 757-58.

In Ground (B) 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 § 35a-7] to allow courts to consider events subsequent to the filing date of the petitions in the adjudicatory phase of termination proceedings. "Practice Book § 33-3(a) [now § 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; 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; see also In re Selena O., 104 Conn.App. 635, 646 (2007) and In re Nelmarie O., 97 Conn.App. 624, 628, 905 A.2d 706 (2006).

C. The relationship between a respondent's compliance with the "specific steps" and whether there is "sufficient rehabilitation"

General Statutes § 46b-129 contains three references to "specific steps."¹² The first reference is in subsection (b):

12 In Practice Book § 26-1(ii), "specific steps" are defined as "those judicially determined steps the parent or guardian and the commissioner of children and families should take in order for the parent or guardian to retain or regain custody of a child or youth."

. . . Upon issuance of an ex parte order, the court shall provide to the commissioner and the parent or guardian specific steps necessary for each to take to address the ex parte order for the parent or guardian to retain or regain custody of the child or youth . . .

The second reference is in subsection (d):

. . . The court, after a hearing pursuant to this subsection [relating to the preliminary hearing on the order of temporary custody or order to appear or the first hearing on a petition filed pursuant to § 46b-129(a) pertaining to neglect, uncared-for or dependency petitions] 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 third reference is in subsection (j) which provides that if a child is committed to DCF after being adjudicated neglected or uncared for "the court shall order specific steps that the parent must take to facilitate the return of the child or youth to the custody of such parent."

Practice Book §§ 33a-6 and 33a-7 also contain similar references to the issuance of specific steps by the court at the time of the issuance of an ex parte order of temporary custody and at the preliminary hearing. Practice Book § 33a-6(d) provides:

. . . (d) Upon issuance of an ex parte order or order to appear, the judicial authority shall provide to the commissioner and the respondents specific steps necessary for each to take for the respondents to retain or regain custody of the child or youth . . .

Practice Book § 33a-7 provides:

(a) At the preliminary hearing on the order of temporary custody or order to appear, or at the first hearing on a petition for neglect, uncared for, dependency, or termination of parental rights, the judicial authority shall: . . . (8) make any interim orders, including visitation, that the judicial authority determines are in the best interests of the child or youth, and order specific steps the commissioner and the respondents shall take for the respondents to regain or to retain custody of the child or youth . . .

General Statutes § 17a-112(j)(3)(B) provides in part with respect to specific steps:

The Superior Court, upon notice and hearing as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that . . . (3) . . . (B) the child (i) has been found by the Superior Court or the Probate 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 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 . . . (Emphasis supplied.)

Although because of the presence of a comma after "proceeding" and the absence of a comma after "fifteen months" such subsection can be read so that the specific steps requirement applies only in Ground B(ii) cases (and not in the much more common Ground B(i) cases), the usual practice in this court accepted by DCF and all other parties is to apply the specific steps requirement to such Ground B(i) cases.¹³

13 The official form petition for termination of parental rights utilized by DCF (JD-JM-40 Rev. 9-2000) separately sets forth Ground B(i) and Ground (B)(ii) bases for termination, so that DCF can select one, the other or both as a basis for termination.

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).

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 . . .

In re Vincent D., 65 Conn.App. 658, 670, 783 A.2d 534 (2001) (citations omitted).

In In re Leah S., 284 Conn. 685, 697, 935 A.2d 1021 (2007), the Supreme Court determined that

. . . a trial court's issuance of specific steps generally constitutes a court order and that the failure to comply with such an order may result in a finding of contempt . . .

In footnote 11 in Leah S., supra, 284 Conn. at 697, the Supreme Court set forth DCF's position concerning failure to comply with the specific steps as follows:

The petitioner conceded at oral argument that the specific steps were a court order that could support a judgment of contempt and agreed that, under certain circumstances, the department would have been in contempt if the language of the specific steps explicitly had ordered the department to place Leah in residential treatment.

To support a finding of contempt, a court's orders in the specific steps need to be "sufficiently clear and ambiguous . . ." In re Leah S., supra, 284 Conn. at 687, 693.

3. Explanation of Ground C, acts of parental commission or omission:

In In re Rachel J., 97 Conn.App. 748, 754-55 (2006), cert. denied, 280 Conn. 941, 912 A.2d 476 (2006), the Appellate Court discussed Ground C in the context of coterminous neglect and TPR petitions:

The court issued a thorough and well-reasoned memorandum of decision on June 3, 2005, in which it found that there was ample evidence that R and N were neglected in that they were denied proper care and attention and permitted to live under conditions or associations injurious to their well-being. The court found that "the extreme injury inflicted on [R], and [the respondent's] subsequent failure to obtain medical treatment for many days amounted to a denial of proper care and attention of both children . . . [R] has been abused and received a serious physical injury that was inflicted by other than accidental means." In addition, the court found that the respondent exposed R to sexual abuse. It stated: "Whether the abuse was perpetrated by [the respondent] or by [F] as [the department] originally believed, in either instance, both children were permitted to live in a home where sexual abuse occurred. [R.'s] significant behavioral problems demonstrate the serious effect the abuse has had on [R]." As to N, the court specifically found that "the domestic violence and physical and emotional abuse of [R] created an environment in the home such that [N] was denied proper care and attention physically, educationally, emotionally or morally and was permitted to live under conditions, circumstances or associations injurious to her well-being." The court further found that "the fact that [the respondent] severely injured [R] after entering into [two service] agreements is further evidence that the children were neglected."

Finding that both children were neglected, the court turned its attention to the termination petitions. As to R, the only ground alleged in the termination petition was that the respondent, as a result of sexual molestation and severe physical abuse on her part, denied R the care, guidance or control necessary for her physical, educational, moral or emotional well-being under § 17a-112(j)(3)(C). The court found by clear and convincing evidence that R's injuries at the hands of the respondent constituted nonaccidental serious physical injuries to a child. It found further that the respondent's "failure to obtain medical treatment for [R] for days after the injury constituted an act of parental omission that . . . denied her the care, guidance and control necessary for her well-being. Moreover, [the respondent] only took [R] for treatment after learning that [the department worker] and [the] father were planning to see [R] the following day." The court found that, in addition to serious physical injury, R suffered serious emotional injury and sexual abuse while living with the respondent. Accordingly, the court concluded that the respondent denied R, by reason of acts of parental commission and omission, the care, guidance or control necessary for her physical, educational, moral or emotional well-being.

In another recent decision, In re Nelmarie O., 97 Conn.App. 624, 626-27, 905 A.2d 706 (2006), the Appellate Court also affirmed a Ground C basis for the termination of parental rights upon the following summary of facts:

The court found that [children] N and Y had seen the respondent and the father abuse [another child] E [who eventually died], and that the respondent had ordered N and Y to hit E with a sandal. There was no evidence, however, that the respondent and the father physically had abused N and Y. The court nonetheless found that the respondent and the father had failed to provide N and Y with "a safe home environment free of violence" and accordingly granted the petitions for neglect and termination of parental rights.

In Nelmarie the Appellate Court discussed the portion of Ground C that refers to a parent's failure to provide for the emotional well-being of a child:

The respondent next claims that the court improperly found that she had failed to provide for the emotional well-being of N and Y pursuant to § 17a-112(j)(3)(C). In support of her claim, the respondent points out that she did not physically abuse N and Y and that she was not the biological mother or legal guardian of E. Section 17a-112(j), however, provides in relevant part that the court `may grant a petition [for termination of parental rights] if it finds by clear and convincing evidence . . . (3) that . . . (C) the child has been denied, by reason of an act or acts of parental commission or omission including, but not limited to . . . the care, guidance or control necessary for the child's physical, educational, moral or emotional well-being . . .' That statute does not require that the children who are the subjects of the termination petition be abused physically. See In re Sean H., 24 Conn.App. 135, 144, 586 A.2d 1171, cert. denied, 218 Conn. 904, 588 A.2d 1078 (1991). Furthermore, the respondent's relationship with E is not relevant to her claim. See id., 143-46. We conclude that the court properly found that the respondent had failed to provide for the emotional well-being of N and Y by abusing E in their presence and ordering them to participate in the abuse.

In re Nelmarie O., supra, 97 Conn.App. at 628-29 (fn omitted).

Other decisions where trial court findings that DCF proved Ground C as a basis for termination of parental rights include:

1. In re Clark K., 70 Conn.App. 665, 676, 799 A.2d 1099 (2002):

. . . The court found, and the evidence is clear and convincing, that "the respondent deliberately and `nonaccidentally' slammed [M's] head against the floor on September 11, 1998." The resulting fracture of the skull, as testified about by Spivack, caused impaired functioning of the brain, seizures and the potential for permanent brain injury or death . . .

2. In re Sheena I., 63 Conn.App. 713, 722-23, 778 A.2d 997 (2001):

. . . Second, the petitions alleged acts of parental commission or omission by the respondent pursuant to General Statutes (Rev. to 1999) § 17a-112(c)(3)(C). In regard to this ground for termination of parental rights, the court found, by clear and convincing evidence, that the respondent had burned S's arms and that she had engaged in acts of parental commission and omission in terms of her lengthy absences from home, her knowledge of the neglect and abuse inflicted on her children by J's father and her failure to take steps to protect her children from such abuse. The court further found, by clear and convincing evidence, that those acts seriously injured the children . . .

(Footnote omitted.)

3. In re Jonathan M., 255 Conn. 208, 213, 764 A.2d 739 (2001):

. . . The court also determined by clear and convincing evidence that the ongoing drug use had served to deny Jonathan, by reason of acts of parental commission and omission, the care, guidance and control necessary for his well-being. The court terminated the parental rights of both the mother and the petitioner, concluding that "neither [the petitioner] nor [the mother] is able to care for their son in the foreseeable future . . . Jonathan needs the stability and consistency that are provided in [the foster] home."

4. In re David W., 254 Conn. 676, 684 (2000), where the Supreme Court reversed the Appellate Court's ruling on an issue of ex parte contact concerning a psychological evaluation and reinstated the trial court's decision that DCF had proved a violation of Ground C:

The trial court concluded that the respondents' inability to acknowledge and accept responsibility for the injuries, despite years of therapy, was a deficiency that "goes to the very issue of safety and well-being of the child. This is not an issue that can be carefully skirted in therapy." The court accepted and adopted Mantell's observations concerning the failure of the respondents to acknowledge or accept responsibility for their actions in seriously injuring their own child. The court also ruled that the acts of parental omission and commission were the "most applicable" ground for termination.^fn3

In footnote 3, the Supreme Court set forth the trial court's rationale for finding a violation of General Statutes § 17a-112(j)(3)(C):

The trial court explained: "Here the child has been clearly exposed to nonaccidental or inadequately explained serious physical injury. The father has obliquely suggested that he possibly did something harmful. The mother has, at a minimum, failed to protect the child. After nearly four years, the parents are only marginally able to deal with their responsibility for, if not participation in those injuries. The court finds that this ground has been proven by clear and convincing evidence."

5. In re Cheyenne A., 59 Conn.App. 151, 158-59, 756 A.2d 303 (2000):

"The phrase prima facie evidence means evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove." (Internal quotation marks omitted.) State v. Watson, 165 Conn. 577, 595-96, 345 A.2d 532 (1973), cert. denied, 416 U.S. 960, 94 S.Ct. 1977, 40 L.Ed.2d 311 (1974). This court has previously dealt with a similar challenge to the termination of parental rights in In re Juvenile Appeal (85-2), 3 Conn.App. 184, 485 A.2d 1362 (1985), in which we stated, "The respondent's final claim is that the court erred in finding that the petitioner proved by clear and convincing evidence that the children had been denied by reason of acts of parental commission or omission the care necessary for their general well-being . . . The essence of the respondent's claim in this regard is that direct evidence as to any acts of commission or omission was lacking and that the judgment rested upon speculation and inference.

"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 this case, as previously set forth in detail, the court found by clear and convincing evidence that Cheyenne suffered severe physical injuries in the form of seventeen rib fractures that occurred at different times. The respondents could not explain her injuries and, after a period of time and reflection, attributed them to Cheyenne's grandmother. "It is not our function to retry the case or to pass upon the credibility of the witnesses; Johnson v. Flammia, 169 Conn. 491, 497, 363 A.2d 1048 (1975) . . ." In re Juvenile Appeal (85-2), supra, 3 Conn.App. 193. On the basis of our review of the record, we conclude that the evidence is sufficient to support the court's conclusion that the respondents, by acts of omission or commission, denied Cheyenne the care necessary for her physical well-being.

See also page 76, et seq., supra. 4. The best interest of the child requirements:

As set forth above, the court first determines whether DCF has proved, by clear and convincing evidence, as to each child, one of the grounds alleged in its TPR petitions. In this case, the grounds alleged against the mother and the father are Ground B, failure to rehabilitate and Ground C, acts of commission or omission.

After making such adjudicatory determinations, before the court can terminate parental rights, it must find, by clear and convincing evidence, that to do so is in the best interest of the child:

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.

As has been set forth above:

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.

In re Brea B., 75 Conn.App. 466, 469-70, 816 A.2d 707 (2003) (internal quotation marks omitted). See also In re Selena O., supra, 104 Conn.App. at 643 n8; In re Shaun B., supra, 97 Conn.App. at 206-07.

The difference in focus between adjudication and disposition has been explained as follows:

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).

The seven required statutory findings¹⁴ are not specified in General Statutes § 17a-112k as the only parameters for determining the best interest of the child in a TPR context. The focus of many of the required statutory findings is to insure that the parents' rights and interests appropriately and properly have been considered.

14 The seven required findings set forth in General Statutes § 17a-112(k) are as follows:

Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended; (3) the terms of any 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; (4) the feelings and emotional ties of the child with respect to the child'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; (5) the age of the child; (6) 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; and (7) 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 Appellate Court recently has set forth the best interest standards of the child in a TPR context as including ". . . the child's interests in sustained growth, development, well-being, and continuity and stability of its environment . . ." In re Ryan R., 102 Conn.App. 608, 625-26, 926 A.2d 690 (2007); see also In re Cameron C., 103 Conn.App. 746, 759, 930 A.2d 826 (2007), cert. denied, 285 Conn. 906 (2008), and In re Brianna C., supra, 98 Conn.App. at 804. The Appellate Court stated that in making such best interests determination, the trial court should "consider and make" the required written General Statutes § 17a-112(k) findings:

The respondent and R both claim that the court improperly concluded, in the dispositional phase of the hearing, that it was in the child's best interest to terminate the parental rights of the respondent with respect to R. We disagree.

"The best interests of the child include the child's interests in sustained growth, development, well-being, and continuity and stability of its environment." (Internal quotation marks omitted.) In re Shyina B., 58 Conn.App. 159, 167, 752 A.2d 1139 (2000). "In the dispositional phase of a termination of parental rights hearing, 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)]." (Internal quotation marks omitted.) In re Jermaine S., supra, 86 Conn.App. 835. The court thoroughly considered each of the seven criteria before finding that the respondent's failure to address her long-term history of substance abuse and domestic violence issues dictated that it would be in R's best interest to terminate her parental rights.

In re Ryan R., supra, 102 Conn.App. at 625-27.¹⁵ See also In re Joseph L., 105 Conn.App. 515, 529-30 (2008), In re Anthony H., 104 Conn.App. 744, 764 (2007) and In re Cameron C., 103 Conn.App. 746, 760 (2007).

15 The ". . . . child's interests in sustained growth, development, well-being, and continuity and stability of its environment . . ." also are applied in connection with neglect dispositions:

In determining the disposition portion of the neglect proceeding, the court must decide which of the various custody alternatives are in the best interest of the child. "To determine whether a custodial placement is in the best interest of the child, the court uses its broad discretion to choose a place that will foster the child's interest in sustained growth, development, well-being, and in the continuity and stability of [the child's] environment." (Internal quotation marks omitted.)

In re Haley B., 81 Conn.App. 62, 67, 838 A.2d 1006 (2004).

Although the focus in the dispositional phase "appropriately shifts from the conduct of the parent to the best interest of the child . . ." 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 . . .

As set forth above, the focus of many of the other required § 17a-112(k) findings also is to insure that the parents' rights and interests appropriately and properly have been considered.

Additionally, 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, General Statutes § 17a-112(j)(3)(D), no parent-child relationship:

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 . . .

Also, General Statutes § 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 in General Statutes § 17a-112(j) are part of "the provisions of this section," e.g., § 17a-112.

4. DCF as statutory parent:

In performing its duties with respect to a TPR trial, 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); see also In re Davonta V., supra, 98 Conn.App. at 53. There are several statutes providing or referring to DCF as statutory parent. For example, General Statutes § 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 . . .

General Statutes § 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.

In its TPR petition,¹⁶ DCF has requested that it be appointed as statutory parent.

16 See also, e.g., General Statutes § 45a-707(7), and see General Statutes § 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.

General Statutes § 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.

5. Closure and permanency for the child:

In determining the best interest of a child in a TPR context, see In re Ryan R., supra, 102 Conn.App. at 625-27 and pages 101-05, supra, the court also considers and applies, inter alia, the concepts of 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. The Appellate Court also referred to stability and permanency concepts in Alejandro L.:

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.

In the neglect context, the Supreme Court referred to the "dual goals of safety and permanency." In re Allison G., supra, 276 Conn. at 159.

Helping children achieve permanency has long been a goal of the federal government, see, e.g., 42 U.S.C. §§ 621, 622, 629g, 629h, 670, 671, 673b, 673c, 675 and 5113, and of the General Assembly, see, e.g., General Statutes § 46b-129(k):

. . . (2) At a permanency hearing held in accordance with the provisions of subdivision (1) of this subsection, the court shall approve a permanency plan that is in the best interests of the child or youth and takes into consideration the child's or youth's need for permanency. The child's or youth's health and safety shall be of paramount concern in formulating such plan . . .

See also General Statutes §§ 17a-110a, 17a-111b and 17a-112(o).

6. The standard of clear and convincing evidence:

In Miller v. Commissioner of Corrections, 242 Conn. 745, 794-95 (1997), Justice Borden explained such clear and convincing standard of proof:

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.)

See also In re Cheyenne A., supra, 59 Conn.App. at 158-59, pages 99-101, supra; Notopoulos v Statewide Grievance Committee, 277 Conn. 218, 226, 890 A.2d 509 (2006); In re Anthony H., supra, 104 Conn.App. at 756 (2007); Eberhardt v. Imperial Construction Serv., 101 Conn.App. 762, 923 A.2d 785 (2007); and Chernick v. Johnston, 100 Conn.App. 276, 280, 917 A.2d 1042 (2007), cert. denied, 282 Conn. 919, 925 A.2d 1101 (2007).

7. The construction of General Statutes § 17a-112:

As set forth above, General Statutes § 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 T. 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).

8. Weight to be given to testimony from court-appointed psychologists:

In Davonta V., supra, 285 Conn. at 488-89, the Supreme Court set forth the standards to be applied by the court in considering expert testimony, which testimony has an important role in neglect and TPR trials:

Parental termination litigation, including the present case, often involves testimony from various child welfare professionals. "The testimony of professionals is given great weight in parental termination proceedings . . . It is well established that [i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony . . . The credibility and the weight of expert testimony is judged by the same standard, and the trial court is privileged to adopt whatever testimony [it] reasonably believes to be credible . . . On appeal, we do not retry the facts or pass on the credibility of witnesses . . . It is the quintessential function of the fact finder to reject or accept certain evidence, and to believe or disbelieve any expert testimony . . . The trier may accept or reject, in whole or in part, the testimony of an expert offered by one party or the other." (Citations omitted; internal quotation marks omitted.) In re Carissa K., 55 Conn.App. 768, 781-82, 740 A.2d 896 (1999) . . .

With respect to the trial court's responsibilities concerning the best interest of a child, the Supreme Court emphasized that such court, after considering expert testimony, ". . . must make its own independent determination as to the best interest of the child . . ."

Nevertheless, although the trial court may rely on expert testimony, it ultimately must make its own independent determination as to the best interest of the child. In re Jeisean M., 270 Conn. 382, 398, 852 A.2d 643 (2004) ("[a]lthough we often consider the testimony of mental health experts . . . such expert testimony is not a precondition of the court's own factual judgment as to the child's best interest" [citations omitted; internal quotation marks omitted]). In sum, we must defer to both the trial court's weighing of the expert testimony presented and the trial court's independent factual determination as to what was in Davonta's best interest.

In re Davonta V., supra, 285 Conn. at 489.

Similar principles have been set forth in earlier decisions:

In the Appellate Court decision in Davonta V., supra, 98 Conn.App. at 60, Judge (now Justice) Schaller, dissenting, wrote:

"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). Earlier, the Supreme Court set forth the parameters for a trial court's use of expert testimony in a family case:

As 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 arid helpful." Yontef v. Yontef, 185 Conn. 275, 281, 440 A.2d 899 (1981).

9. The balancing of the legitimate interests of the parents, children and the state of Connecticut:

Each termination of parental rights case requires consideration of the interests of all parties, but as set forth above, the statutory standards require a focus on the best interests of the child, not the primary wishes or best interests of the parents. Nevertheless:

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).

Since Meyer v. Nebraska, 262 U.S. 390, 399, 401-03, 43 S. Ct. 625, 67 L. Ed. 1042 (1923), the United States Supreme Court has recognized the fundamental liberty interest of parents in the custody, care and control of their children. Most recently in Fish v. Fish, supra, Justice Katz's dissenting opinion, the line of Supreme Court cases, beginning with Meyer, in which this fundamental liberty interest is recognized, has been set forth:

The Supreme Court's decisions recognizing this fundamental right date back to at least 1923. See Meyer v. Nebraska, 262 U.S. 390, 399, 401-03, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (concluding that "proficiency in foreign language . . . is not injurious to the health, morals or understanding of the ordinary child" and recognizing right of parents to "establish a home and bring up children" and to "control the education of their own"); Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (holding that state could not interfere with parents' decision to send children to private schools when decision was "not inherently harmful" and recognizing right "to direct the upbringing and education of children under their control"); Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (exempting Amish from state compulsory education law requiring children to attend public school until age eighteen, recognizing that "primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition"); see also Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944) ("[i]t is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder"); Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) ("[i]t is plain that the interest of a parent in the companionship, care, custody, and management of his or her children `come[s] to this [c]ourt with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements'"); Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978) ("[w]e have recognized on numerous occasions that the relationship between parent and child is constitutionally protected"); Parham v. J.R., 442 U.S. 584, 602, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979) ("Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course."); Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (discussing "[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child"); Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) ("[i]n a long line of cases, we have held that, in addition to the specific freedoms protected by the [b]ill of [r]ights, the `liberty' specially protected by the [d]ue [p]rocess [c]lause includes the righ[t] . . . to direct the education and upbringing of one's children" [citations omitted]).

Fish v. Fish, supra, 285 Conn. at 93 n3 (Katz, J., dissenting).

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.

GENERAL STATUTES § 17A-112(k) FINDINGS: 1. The timeliness, nature and extent of services offered, provided and made available to the parent and each child by an agency to facilitate the reunion of each child with the parent.

(A) The mother has been offered and has received the following services from or facilitated by DCF, inter alia:

AMPS supervised visitation and parent education;

ECHN for individual counseling; court-ordered psychological evaluations;

court-ordered psychiatric evaluation;

transportation;

additional supervised visitation; domestic violence services; sexual abuse crisis services; and

administrative and case management services.

After DCF filed its petition to terminate the mother's parental rights, but before its motion to amend its TPR petition that was granted in November 2007, the mother, in connection with criminal proceedings pending against her, entered into group anger management sessions. The mother also initiated individual counseling.

(B) The father has been offered and has received the following services from or facilitated by DCF, inter alia:

AMPS supervised visitation and parent education; additional supervised visitation;

Kidsafe reunification program;

Department of Social Services Services;

R______ M_____ for anger management services;

individual counseling;

anger management classes;

court-ordered psychological evaluations; and

administrative and case management services.

After DCF filed its petition to terminate the father's parental rights, but before its motion to amend its TPR petition that was granted in November 2007, it offered to the father individual counseling.

(C) Marcus has been offered and has received the following services from or facilitated by DCF, inter alia:

medical and dental services plus an MDE;

reunification services;

supervised visitation;

transportation;

foster care services;

educational services; and administrative and case management services.

All services offered to the mother, the father and to Marcus have been reasonably timely under the circumstances.

2. Whether DCF has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980 as amended.

DCF has made reasonable efforts to reunite the mother and the child, and the father and the child. See 1. above, and other discussions of reasonable efforts throughout this memorandum of decision.

3. The terms of an applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order(s).

On February 2, 2007, Judge Graziani ordered specific steps for the mother and the father "to safely . . . regain the custody . . ." of such child, including:

keep all appointments set by or with DCF;

keep parents' whereabouts known to DCF;

participate in parenting and individual counseling and make progress toward identified treatment goals to be a responsible parent, including for the father:

PARENTING:

1. Development of stronger parenting skills in the area of supervision, hygiene, educational support, medical care, etc.

2. Provide increased support to children emotional/mental health/education/medical.

3. Increased understanding of appropriate physical discipline and consistent parenting.

4. Increased understanding of child/ren developmental issues.

5. Develop support system to assist with childcare responsibilities.

OTHER

6. Cooperation with orders and expectations of family/superior court, and for the mother:

PARENTING

1. Development of stronger parenting skills in the area of supervision, hygiene, educational support, medical care, etc.

2. Provide increased support to child/ren emotional/mental health/education/medical.

3. Increased understanding of appropriate physical discipline and consistent parenting.

4. Increased understanding of children developmental issues.

5. Develop support system to assist with childcare responsibilities.

VIOLENCE/BEHAVIORAL

6. Stop violence from occurring in the home.

7. Increased insight into the impact that violence has on the children.

8. Improved Interpersonal skills as evidenced by less conflict in the family.

9. Accept responsibility for own behavior.

10. Identity the negative effects of his or her behavior.

11. Develop more effective interpersonal communication and relationships.

OTHER

12. Cooperation with orders and expectations of family/superior court . . .;

accept and cooperate with in-home support services referred by DCF; cooperate with recommended service providers for parenting/individual/family counseling, in-home support services;

sign releases within thirty days authorizing DCF to communicate with service providers to monitor attendance, cooperation and progress toward identified goals, and for use in further proceedings before the court;

secure or maintain adequate housing and legal income; no substance abuse;

no involvement/further involvement with the criminal justice system;

immediately advise DCF of' any changes in the composition of the household to ensure the change does not compromise the health and safety of the child;

visit the child as often as DCF permits; and

within thirty days . . . notify DCF in writing of the name, address, family relationship and birth date of any persons whom the respondent would like DCF to investigate and consider as a placement resource for the child.¹⁷

17 The specific steps also ordered DCF to take action as follows:
1. Take all necessary measures to ensure the child(ren)'s safety and well being.
2. Provide case management services.
3. Development periodic treatment/permanency plan and review it with the Respondent.
4. Refer the Respondent to appropriate services (see above) and, as otherwise needed, monitor his/her progress and compliance.
5. Monitor the welfare of the child(ren) and the circumstances surrounding his/her/their care by the Respondent.
6. In a Domestic Violence case, assist in developing, implementing and monitoring an appropriate safety plan.
7. Evaluate home of following person(s) as potential placement for child(ren).
8. Provide respondent with written, dated notice of all referrals to service providers and retain copies of such notices for the court.
9. Implement reasonable recommendations made by service providers and for evaluators in this matter, or obtain relief from the court.
10. Within thirty (30) days of the receipt of written notice by the respondent, complete the investigation and consideration of any person(s) whom the respondent has properly identified as a placement resource for the child(ren).

As of October 12, 2007, DCF had determined that both the mother and the father had generally complied with each of their respective specific steps. (Exhibit 2, 2-7.) During the trial both the mother and the father, through the witnesses called by each of them to testify and through documents admitted as full exhibits, set forth such compliance. This court thus finds that each parent generally complied with his or her specific steps, except, as set forth in detail on pages 57-61 and elsewhere, supra, because the mother has inflicted injuries to Marcus, has not admitted her responsibility for such injuries, has sought in the past to blame others for them, continues to seek to place blame on others for them, and because the mother continues to live in a relationship with a history of multi-year serious domestic violence which at times occurred when Marcus and the partner's daughter were present, the mother has not been able to take the steps necessary to rehabilitate herself to enable Marcus to be reunified with her.

4. The feelings and emotional ties of such child with respect to his or her parents, any guardian of the person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties.

As of the dates of the trial, Marcus was bonded to his mother, and enjoyed a good relationship with her. Marcus also had a positive relationship with the mother's partner.

As of the dates of the trial, Marcus was bonded to his father, and enjoyed a good relationship with him.

As of the dates of the trial, Marcus was bonded to his paternal grandmother and to his paternal grandfather, who, since May 2007, had been designated by DCF as his foster parents. Marcus has had enjoyed and continues to enjoy a good relationship with them in a stable environment, and they currently provide for his needs.

5. The age of each of the children:

Marcus is four years, seven months 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.

Until January 30, 2007, when DCF placed a ninety-six-hour hold on Marcus, the father was the sole custodian of Marcus. Prior to such date, the mother resided with her partner in a home that was marked by substantial domestic violence. After DCF, on February 2, 2007, filed the TPR petition that in April 2007, was withdrawn and re-filed in another regional court, it offered services to each parent. DCF referred the mother and the father "to Kidsafe for parenting classes to address appropriate use of discipline with children . . ." (Exhibit 2, 9, 11.) This was consistent with DCF's position that, although it suspected that the mother was responsible for such injuries, it could not determine which parent had inflicted the injuries and marks on Marcus' back. Each parent, according to the provider, successfully completed the classes. Id.

The mother consistently failed and refused to accept her personal responsibility, for which there is sufficient evidence (see, e. g., pages 57-61, supra, and citations therein), for the three fractures suffered by Marcus, and for the infliction of the injuries to and marks on Marcus' back. Instead, the mother consistently has denied knowledge of the source of such injuries and she has attempted to place blame for them on the father (for all of such injuries) and his former paramour (for the 2007 injuries). See, e. g., exhibit 2, 9.¹⁸

18 The mother claimed that she discovered the injuries to Marcus' back on January 22, 2007, and that she attempted to telephone the father to discuss them. She admitted that she did not contact DCF, the police or Marcus' pediatrician concerning the injuries. Instead, when Marcus told the father, his paternal grandmother and others that "Mommy bit me with a belt", the mother stated that Marcus called the father's paramour "Mommy," as reported by Dr. L________ and the DCF investigator.

The mother has denied or minimized her multi-year history of domestic violence with her partner. For example, in the October 12, 2007, social study, the current DCF worker stated:

The Department is concerned as Mother remains involved in a relationship with Ms. T_____ despite domestic violence concerns. On 03/13/07, Mother and Ms. T_______ modified their Protective Order, regarding their criminal court case, at the __________ Superior Court so that they can reside together as a couple again and maintain their relationship. Mother and Ms. T______ continue to deny that domestic violence occurred in their relationship. However, they have participated in services to address domestic violence issues as mentioned above. Mother maintains that there was no domestic violence in her relationship with Ms. T_______ in 10/06, despite the couple's neighbors reporting on-going domestic violence between the two, a police report documenting injuries sustained by both parties, and both parties being arrested for Breach of Peace. The Department also has concerns regarding Ms. T_____'s choice to pursue a relationship with Mother with the knowledge that Mother has a Termination of Parental Rights case and that her own child is not able to have contact with or reside in the same home with Mother.

Id., 10; see also exbibit 3, 3.

The mother admittedly has lied to the police at the request of and to support her partner, compare exhibit 27 with exhibit 28 and see pages 17-18, supra. The mother was charged with three class A misdemeanors, and is currently on pretrial probation. (Exhibits 22 and O.)

The mother and her partner have moved from the residence that such social worker evaluated prior to October 2007, and from the town in which such residence was located, thus continuing a pattern of lack of stability in housing. The mother has had a series of jobs, and has been unemployed at times, thus demonstrating a lack of stability in employment.

On January 30, 2007, when DCF invoked the ninety-six-hour hold on Marcus, the mother stated that she preferred Marcus to be placed in foster care than for him to remain with the father, who had court-ordered custody of him. The mother has continued to demonstrate that if she were awarded sole custody of Marcus, she would not facilitate Marcus' relationship with his father. On the last day of the trial, the mother's attorney requested that the mother's address or the town in which she is now living with her partner not be put on the record because of her alleged fear of the father, who, unlike the mother, has no history of violence continuing until approximately one week before the entry of the January 30, 2007, ninety-six hour hold.¹⁹

19 In the April 25, 2007, addendum to the DCF social study filed in connection with the termination of parental rights petition, page 3, the current social worker described the mother's hopes and efforts to substitute her partner for the father in Marcus' fife, her alleged fear of the father, her lack of employment and her lack of independent housing:

Mother is presently residing in Putnam, CT with her partner, Ms. T_____ and . . . Ms. T_____ a family. Mother has expressed that she does not want her address information released to Father as she is fearful of him, Mother was reportedly going to purchase a home with her partner; however, this has yet to occur.

Mother continues to be unemployed, yet she reports that she is actively seeking employment at this time.

Mother remains involved in a relationship with Ms. T_____ despite domestic violence concerns. On 03/13/07, Mother and Ms. T______ modified their Protective Order, regarding their criminal court case, at the __________ Superior Court so that they can reside together as a couple. Mother and Ms. T_____ continue to deny that domestic violence occurred in their relationship. Mother maintains that there was no domestic violence in her relationship with Ms. T______ in 10/06, despite the couple's neighbors reporting on-going domestic violence between the two, a police report documenting injuries sustained by both parties, and both parties being arrested for Breach of Peace. Their court case is currently pending.

Another area of concern for the Department is the fact that there is currently an active Department of Children and Families case regarding Ms. Tucker and her biological child. The case involving Ms. T_____ was opened on 06/26/06. Ms. T______'s child is placed in a relatives' home via a family agreement at this time. Mother and Ms. T______ desire to obtain joint custody of Marcus, Mother continues to desire a relationship between Marcus and Ms. T, despite Ms. I______ not being authorized supervised visits with Marcus by the Department. Mother reports that she also feels it is important for Marcus and Ms. Tucker's daughter to maintain a relationship with each other.

The efforts the mother has made to adjust her circumstances, conduct or conditions to make it in the best interests of Marcus to return home in the foreseeable future do not support such a result.

Since DCF invoked the ninety-six-hour hold on January 30, 2007, the father has cooperated with DCF and generally complied with the specific steps in an effort to facilitate Marcus' reunification with him.

He continuously has been employed with the same company for approximately six years, and as recognized previously by DCF and others, he is the more stable of Marcus' parents. The father continues to participate in individual therapy sessions. Id., 7, 11.

The father continues to have a good relationship with Marcus and with his parents.

7. The extent to which a parent has been prevented from maintaining a meaningful relationship with the children by the unreasonable act or conduct of the other parent of the children, or the unreasonable act of any other person or by the economic circumstances of the parent.

There was no evidence presented that the mother or the father has been prevented from maintaining a relationship with Marcus by any unseasonable act or conduct of any other person.

Although the court had some very general information, some of which has been set forth in this decision, neither the mother nor the father provided specific information concerning her or his current or past economic circumstances.

WITH RESPECT TO THE MOTION FOR TRANSFER OF GUARDIANSHIP, THE ATTORNEY FOR THE CHILD OFFERED NO EVIDENCE AND IT IS THUS DENIED.

A transfer of guardianship is frequently sought in child protection matters as a dispositional option after the revocation of a commitment. See Practice Book § 35a-14(c); In re Patricia C., 93 Conn.App. 25, 30, 887 A.2d 929, cert. denied, 277 Conn. 931, 896 A.2d 101 (2006); and In re Nasia B., 98 Conn.App. 319, 330, 908 A.2d 1090 (2006). Because DCF is proceeding in this case on coterminous petitions for neglect and termination, at this point in the case there is no adjudication of neglect²⁰ and no order of commitment has entered (but see page 132, infra). Thus procedurally the attorney for Marcus is seeking to have his guardianship transferred from each of his parents to the paternal grandparents. Neither the mother, the father or the paternal grandparents have joined in or indicated any approval of such motion. The paternal grandmother, to whom (with the paternal grandfather) such guardianship would be transferred pursuant to the motion of the attorney for Marcus, testified that she is seeking to adopt Marcus. The attorney for Marcus did not offer any evidence in support of the motion. Such motion is denied.

20 As set forth in paragraph 17 on page 14, supra, on February 28, 2005, the court adjudicated Marcus neglected and committed him to the care, custody and guardianship of DCF. (Exhibit 4, 4.) On September 23, 2005, the court revoked the commitment of Marcus to DCF, continued the father's physical custody of Marcus and entered an order of protective supervision by DCF for a period of six months. Id. On December 22, 2005, the court terminated the order of protective supervision. Id. The court transferred future issues concerning custody and visitation to the Superior Court for Family Matters. Id. On January 24, 2006, DCF closed its file. Id. See page 16, supra.

MARCUS IS HEREBY ADJUDICATED NEGLECTED AND COMMITTED TO THE CARE, CUSTODY AND GUARDIANSHIP OF THE COMMISSIONER OF THE DEPARTMENT OF CHILDREN AND FAMILIES.

Based upon the facts and the law set forth above and applying the fair preponderance of the evidence standard, Marcus is adjudicated neglected because prior to February 2, 2007,

(1) he was denied proper care and attention, physically, educationally, emotionally or morally; and

(2) he was permitted to live under conditions, circumstances or associations injurious to well being.

The court has considered the disposition options set forth in General Statutes 46b-129(j), and in Brianna C., supra, 98 Conn.App. at 805 (see pages 62-67, supra):

After an adjudication of neglect, a court may

(1) commit the child to the commissioner,

(2) vest guardianship in a third party or

(3) permit the parent to retain custody with or

without protective supervision. General Statutes § 46b-129(j) . . .

The court finds by a fair preponderance of the evidence that it is Marcus' best interest to be committed to the care, custody and guardianship of the commissioner of the department of children and families and to remain in the custody of his paternal grandparents.

WITH RESPECT TO THE MOTHER OF MARCUS, DCF HAS PROVED, BY CLEAR AND CONVINCING EVIDENCE, THE GROUND B(i) ALLEGATIONS OF ITS TERMINATION OF PARENTAL RIGHTS PETITION.

The court finds that DCP has alleged and proved, by clear and convincing evidence, that

(1) this court has jurisdiction over the matter and the parties;

(2) Marcus previously was adjudicated neglected, but subsequently he was reunified with his father, first tinder an order of protective supervision, and then unconditionally;

(3) prior to filing its termination petition, DOF made reasonable efforts to reunify the mother with Marcus through offers of, provision or attempted provision of services to such mother and child;

(4) the mother was unable or unwilling to benefit from the offers of, provision and attempted provision of services to the point where she could be reunified with Marcus;

(5) because of the events, relationships, behavior and issues set forth in this decision, (i) after Marcus was removed from her and the father on December 5, 2003, (ii) after the February 28, 2005, neglect adjudication, (iii) prior to the filing of the February 2, 2007, coterminous neglect and TPR petitions and (iv) thereafter through the last date of the trial, the mother failed to achieve the degree of personal rehabilitation that:

(a) encouraged the belief that prior to the filing of the TPR petition,

(b) would encourage the belief that within a reasonable time after the filing of such petition, or

(c) would encourage the belief, within a reasonable time in the future, considering Marcus' age, past and current circumstances and needs, she could assume a position in his life as a responsible parent providing an environment that was free of domestic violence, free of physical and emotional abuse or neglect of Marcus, and that provided for and insured Marcus' safety and welfare; and thus

(6) the level of rehabilitation the mother has achieved falls short of that which would encourage a belief that at some reasonable future date she can assume a responsible position in her child's life.

DCF has thus proved, as to the mother, by clear and convincing evidence, the Ground B(i) allegations of its TPR petition.

WITH RESPECT TO THE FATHER OF MARCUS, DCF HAS NOT PROVED, BY CLEAR AND CONVINCING EVIDENCE, THE GROUND B(i) ALLEGATIONS OF ITS TERMINATION OF PARENTAL RIGHTS PETITION.

With respect to the father, DCF has not proved by clear and convincing evidence, the Ground B(i) allegations of its complaint. The evidence before the court is that the father has led a generally stable, normal life since Marcus was reunified with him in July 2005. The disruptions in his (and Marcus') life after July 2005, set forth in the evidence were caused primarily by the mother's efforts to obtain custody of Marcus in circumstances where it was not in Marcus' best interest for her to have such custody, and by the mother's unsubstantiated allegations to DCF and others concerning the father and Marcus. As set forth on page 45, supra, the forensic psychologist opined that if the court were to find that one of the parents was the perpetrator of the physical abuse, then the other parent's custody should not be affected. The court has considered this opinion and the other evidence concerning the father since July 2005, in determining that DCF has not proved such Ground (B)(i) allegation against the father.

WITH RESPECT TO THE MOTHER DCF HAS PROVED GROUND C, ACTS OF COMMISSION OR OMISSION.

As one of the seven adjudicatory grounds for termination of parental rights, General Statutes § 17a-112(j)(3)(c) is:

. . . (C) the child has been denied, by reason of an act or acts of parental commission or omission including, but not limited to, sexual molestation or exploitation, severe physical abuse or a pattern of abuse, the care, guidance or control necessary for the child's physical, educational, moral or emotional well-being, except that nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights . . .

As set forth on page 76, et. seq., supra, In re Cheyenne A., 59 Court. App. 151, 158-59 (2000), the above phase, "prima facie evidence", was explained as follows:

"The phrase prima facie evidence means evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove." (Internal quotation marks omitted.) State v. Watson, 165 Conn. 577, 595-96, 345 A.2d 532 (1973), cert. denied, 416 U.S. 960, 94 S.Ct. 1977, 40 L.Ed.2d 311 (1974).

As set forth on pages 57-61, supra, this court has found, by clear and convincing evidence, that the mother, by reason of an act or acts of parental commission or omission including, but not limited to severe physical abuse or a pattern of abuse, denied Marcus the care, guidance or control necessary for his physical, educational, moral or emotional well-being. Marcus' three fractures and the injuries to his back at the hands of his mother also constituted non-accidental serious physical injuries.

If the court had not found the mother responsible for such injuries, it would find, by clear and convincing evidence, that mother had not rebuffed the non-accidental/inadequately explained serious physical injury presumption set forth above on page 135, inter alia.

WITH RESPECT TO THE FATHER DCF HAS NOT PROVED GROUND C.

With respect to the father, DCF has not proved Ground C. Until after December 5, 2003, when Marcus was first removed by DCF, no one, including the father, knew about the three fractures or who was the cause of such fractures. With respect to the January 2007, injuries to Marcus' back, it was the father who, after seeing the condition of Marcus' back, contacted DCF, told Marcus' Head Start teacher about and showed her such injuries, and brought Marcus to his pediatrician.²¹ The evidence does not demonstrate, and the court does not find, that the father by reason of an act or acts of parental commission or omission including, but not limited to severe physical abuse or a pattern of abuse, denied Marcus the care, guidance or control necessary for his physical, educational, moral or emotional well-being.

21 In January 2007, and prior thereto, the father and the mother, who had lived apart for approximately three years, had a custody/visitation arrangement where the father brought Marcus to the Head Start program on Monday morning and the mother took Marcus to her home after school on Monday afternoon. The mother visited with Marcus until Thursday morning when the mother brought Marcus to such program, and on Thursday afternoon the father picked up Marcus after school and kept him at his home until the next Monday morning, Thus, on Monday, January 22, 2007, the father brought Marcus to the Head Start program. The mother picked him up on that afternoon, and she subsequently alleged that she saw the injuries to Marcus' back (see, e. g., exhibit AAA, 3) and left a message for the father to telephone her. She did not contact DCF, the police, Marcus' pediatrician or show the injuries to Marcus' Head Start teacher. On Thursday, January 25, 2007, the father picked up Marcus from such program. On such day Marcus said to the father and his paramour that the mother had hit him on his back with a belt. Neither the father nor his paramour looked at Marcus' back. On the next day, Friday, January 26, 2007, the injuries to and marks on Marcus' back were discovered when Marcus was being given a bath. The father thereafter contacted his attorney for advice. The attorney did not return the father's telephone call until Sunday, January 28, 2007. After such call, the father called the DCF hotline to report the injuries and he stated that he would be taking Marcus to his pediatrician on Monday, January 29, 2007. On such day the father and Marcus first went to the Head Start program to explain to the teacher that Marcus was going to his pediatrician and to show the teacher his back. They then went to the pediatrician's office.

WHETHER IT IS IN THE BEST INTEREST OF MARCUS FOR THE MOTHER'S PARENTAL RIGHTS TO BE TERMINATED:

Utilizing the clear and convincing evidence standard, the court has considered the best interest of Marcus with respect to whether the mother's parental rights should be terminated.

In the October 12, 2007, social study in support of permanency plan, the current social worker reported that Marcus was doing well in his placement with the paternal grandparents; that he was up to date medically; that the grandparents treated Marcus daily for dermatitis issues; that Marcus was "a very sweet and loving child"; and that Marcus told her that "he feels `happy' in the care of his Paternal Grandparents." (Exhibit 2, 14.)

In her February 8, 2008, testimony, the current DCF worker stated that Marcus was "doing great . . . thriving . . . sprouting up . . . [and] smiling all the time . . ." The grandparents had followed through on Marcus' medical needs, had placed him into pre-school and were giving him a lot of love and attention. Marcus' skin had greatly improved tinder the care of the grandparents.

During Marcus' life, the mother has not been able to provide the safe, secure, nurturing, stable, violence-free, and permanent environment for Marcus required by statute and case law. See, e.g., pages 57-61, 126-30, supra.

The mother has alleged that there was domestic violence when she lived with the father. She has denied or minimized the actual domestic violence that has occurred during her relationship with her current partner. She claims to be in fear of the father who has not lived with her for several years. She claims not to fear her partner who has repeatedly physically assaulted her, and her first choice is to continue to live with such partner, whose daughter on February 5, 2008, had her guardianship transferred from the partner to maternal relatives. (Testimony of current DCF worker.) See also the psychological evaluator conclusions, pages 41-42, supra, about how "[t]he mother has constructed her life in a problematic fashion . . ." and that "[t]he mother's current life situation does not encourage the belief that she is likely to stabilize in the future and overcome the impediments to a reconciliation with her son . . ."

By her actions and decisions, the mother has placed her relationship with her partner, who has a history of domestic violence and mental health issues, above her relationship with Marcus.²² By minimizing the problems and violence in her relationship with such partner, to whom the mother remains committed, the mother has demonstrated that neither the court nor DCF can rely on her to provide a safe, secure, permanent home for Marcus free of violence to her, the partner and especially to Marcus.

22 The mother's goal seemingly is to eliminate the father and his family in Marcus' life and to replace him with her partner and her family. In furtherance of such goal, by way of example, on February 8, 2008, the mother objected to the current worker stating her current address, a result of which, if she were to obtain custody, would be that neither the father not the paternal grandparents would know where Marcus lived. In additional furtherance of such goal, the mother has acted over a period of years to substitute herself instead of the father or DCF as Marcus' sole custodian, despite the stress, tension and upheaval her efforts have brought to Marcus. Similar actions by the mother are likely continue if the mother's parental rights are not terminated. In connection with such efforts, in connection with protecting her partner and attempting to establish her partner as a replacement for the father and his family, in connection with attempting to establish a family of the partner, her daughter, Marcus and herself, over time the mother comprised, if not destroyed, her credibility with the court, DCF and the police.

Despite almost a year of individual therapy, the mother continues to demonstrate instability instead of stability in housing and employment.

The court finds, by clear and convincing evidence, tat it is in the best interest of Marcus, and that it is necessary for his growth, development, safety, security, stability, and permanency, that the parental rights of the mother be terminated.

CONCLUSION AND ORDERS:

Having considered the evidence and the statutory, Practice Book and case law requirements, the court finds, by clear and convincing evidence as to the mother of Marcus:

(a) DCF has proved, by clear and convincing evidence, Ground B, failure to rehabilitate, and Ground C, acts of commission; and

(b) it is in the best interest of Marcus to terminate the parental rights of the mother.

Accordingly, it is hereby ORDERED that the parental rights of the mother are hereby terminated.

With respect to the father, DCF did not prove Ground B, failure to rehabilitate, or Ground C, acts of commission or omission.

Marcus is hereby committed to the care, custody and guardianship of DCF. It is in Marcus' best interest to remain in his current placement. It is not in Marcus' best interest at this time to be returned to the father (the father through counsel stated during the trial that he wanted Marcus to stay with his parents). On or before March 20, 2008, DCF shall prepare specific steps to be reviewed by and discussed with the father. DCF shall be responsible for obtaining court approval of a set of specific steps.

Pursuant to General Statutes § 46b-129(j), this court finds that DCF made reasonable efforts to keep Marcus with each of his parents.

Judgment shall enter accordingly.