Opinion
Nos. H12-CP02-008535-A, H12-CP02-008536-A, H12-CP02-008537-A, H12-CP03-008921-A
March 30, 2007
MEMORANDUM OF DECISION
On February 23, 2007, this court terminated the parental rights of the mother, the father of Melody L. and Melinda L., and the father of Jenira R., Jaime R., and Neri R. In re Melody L., Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Bear, J., February 23, 2007).
In such decision, as to the mother, the court ruled that
(1) because of her circumstances and issues set forth in such decision, after each child was removed from her, after each neglect adjudication occurred, and prior to the filing of the TPR petitions and thereafter, the mother failed to achieve the degree of personal rehabilitation
(a) that encouraged the belief that prior to the filing of the TPR petitions,
(b) that would encourage the belief that within a reasonable time after the filing of such petitions, or
(c) that would encourage the belief, within a reasonable time in the future, considering the ages and needs of each child, she could assume a responsible position in the life of each of the above-named children; and
(2) each of the children except Neri, who was not born at the time of the multi-year events set forth in the court's decision leading to the removal of the children from her, has been denied by the mother, by reason of acts of parental commission and omission including, but not limited to, a pattern of sexual abuse and severe physical abuse involving multiple acts, and the mother's failure to act to prevent such abuse, the care, guidance or control necessary for each of their physical and emotional well-being. Id., 81-82.
With respect to each of such children, the court found that it was in each of her or his best interests that each parent's parental rights be terminated. For example, with respect to Melody, the court set forth that it considered, inter alia, the evidence presented concerning Melody's unhealthy, dangerous, abusive situation and circumstances at the time of and prior to the filing of the neglect petitions; the trauma inflicted upon her, from which she suffers at present although more than four years have elapsed since her removal from the mother's care, custody and control; her current situation, needs and circumstances; the length of time she has been out of the mother's care, custody and control and in foster care; and the reports of her needs, behavior and continuing issues after being removed from the mother's care, custody and control. Id., 84.
The court found, by clear and convincing evidence, that it was in the best interest of Melody, and that it was necessary for her growth, development, safety, security, stability, and permanency, that the rights of the mother and the father be terminated. Id.
The court made similar findings with respect to each of the other children. See pages 85-87.
On March 23, 2007, pursuant to Practice Book §§ 61-11 and 61-12, the mother moved for a stay of the court's order terminating the mother's parental rights while the mother's appeal to the Appellate Court, filed March 9, 2007, was pending.
"Sec. 61-11. Stay of Execution in Noncriminal Cases . . . (b) Matters in which no automatic stay is available under this rule[.] Under this section, there shall be no automatic stay . . . in juvenile matters brought pursuant to chapters 26 through 35a . . . (e) Motions to request stay[.] Requests for a stay pending appeal where there is no automatic stay shall be governed by Section 61-12."
The mother alleged that she intended to file an appeal, that a stay of the court's "order" would "cause the legal status of the children to remain as committed to the care, custody and guardianship of the commissioner of the department of children and families ("DCF"), that DCF would "need to continue the visits between the mother and the children . . ." the children have a "very close relationship" with the mother, and should the mother "be successful on appeal the cessation of visit[s] would cause irreparable harm" to the children and the mother.
Each of the children were committed to the care, custody and guardianship of DCF at the time of the filing of the TPR petitions and thereafter prior to the court's February 23, 2007, decision and orders terminating the mother's parental rights.
Pursuant to General Statutes § 17a-10a, DCF has statutory duties and responsibilities with respect to visitation with the children committed to it: "Sec. 17a-10a. Visitation with child in care and custody of commissioner. Visitation of child with sibling. (a) The Commissioner of Children and Families shall ensure that a child placed in the care and custody of the commissioner pursuant to an order of temporary custody or an order of commitment is provided visitation with such child's parents and siblings, unless otherwise ordered by the court.
(b) The commissioner shall ensure that such child's visits with his or her parents shall occur as frequently as reasonably possible, based upon consideration of the best interests of the child, including the age and developmental level of the child, and shall be sufficient in number and duration to ensure continuation of the relationship.
(c) If such child has an existing relationship with a sibling and is separated from such sibling as a result of intervention by the commissioner including, but not limited to, placement in a foster home or in the home of a relative, the commissioner shall, based upon consideration of the best interests of the child, ensure that such child has access to and visitation rights with such sibling throughout the duration of such placement. In determining the number, frequency and duration of such visits, the commissioner shall consider the best interests of each sibling, given each child's age and developmental level and the continuation of the sibling relationship.
(d) The commissioner shall include in each child's plan of treatment information relating to the factors considered in making visitation determinations pursuant to this section. If the commissioner determines that such visits are not in the best interests of the child or that the number, frequency or duration of the visits requested by the child's attorney or guardian ad litem is not in the best interests of the child, the commissioner shall include the reasons for such determination in the child's plan of treatment."
On March 26, 2007, the attorney for the children also filed a motion to stay the execution of the court's TPR orders while the children's appeal to the Appellate Court, filed March 13, 2007, was pending. Both the mother and the children referred the court to the Supreme Court's decision in Griffin Hospital v. Commission on Hospitals Health Care, 196 Conn. 451, 455, 493 A.2d 229 (1985). That decision approved a "balancing of the equities" test in determining whether a stay of the court's decision should be issued during an appeal, including standards of the type utilized in connection with whether to issue an injunction: "While we thus approve the `balancing of the equities' test employed by the trial court, we do not in its application eschew such factors as the likely outcome of the appeal, the irreparability of the prospective harm to the applicant, or the effect of delay in implementation of the order upon other parties as well as upon the public interest. We have vested a large measure of discretion in trial judges in terminating or granting stays and, upon review, the issue usually is whether that discretion has been abused." Griffin Hospital v. Commission on Hospitals Health Care, supra, 196 Conn. at 458-59. With respect to the mother's motion for stay, in TPR cases the children are presumably encompassed by the phrase "other parties."
In child protection cases, a focus mandated by statute is permanency for each child. Permanency has also been the focus of Appellate Court review of trial court decisions, such as in In re Davonta V., 98 Conn.App. 42, 907 A.2d 126 (2006). In such decision, the Appellate Court considered the testimony of a forensic psychologist on the importance of permanency to a child, and such Appellate Court recognized the trial court's discretion to accept such testimony of such forensic psychologist instead of the contradictory testimony of the guardian ad litem.
See, e. g., General Statutes § 17a-110: ". . . Permanency planning for children. Definitions. Procedure after commitment hearing. Regulations. Central registry. Duties of commissioner. (a) As used in this section, "child" means a person under the age of eighteen years; "foster child" means a child placed temporarily in a home, pending permanent placement; "permanent home" means a home for a child with the child's genetic or adoptive parents considered to be such child's permanent residence; and "permanency placement services" means services that are designed and rendered for the purpose of relocating a foster child with such child's legal family or finding a permanent home for such child, including, but not limited to, the following: (1) Treatment services for the child and the genetic family; (2) preplacement planning; (3) appropriate court proceedings to effect permanent placement, including, but not limited to, the following: (A) Termination of parental rights; (B) revocation of commitment; (C) removal or reinstatement of guardianship; (D) temporary custody; (4) recruitment and screening of permanent placement homes; (5) home study and evaluation of permanent placement homes; (6) placement of children in permanent homes; (7) postplacement supervision and services to such homes following finalization of such placements in the courts; and (8) other services routinely performed by caseworkers doing similar work in the Department of Children and Families.
(b) At a hearing held in accordance with subsection (k) of section 46b-129 and section 17a-111b, the court shall determine the appropriateness of continuing efforts to reunify a child with the child's family. If the court finds that such efforts are not appropriate, the Department of Children and Families shall within sixty days of such finding either (1) file a petition for the termination of parental rights, (2) file a motion to revoke the commitment and vest the custody and guardianship of the child on a permanent or long-term basis in an appropriate individual or couple, or (3) file a written permanency plan with the court for permanent or long-term foster care, which plan shall include an explanation of the reason that neither termination of parental rights nor custody and guardianship is appropriate for the child. The court shall promptly convene a hearing for the purpose of reviewing such written plan. When the court finds that the efforts to reunify a child with the child's family are not appropriate, the department shall use its best efforts to maintain such 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 alternative home."
"When asked her opinion regarding whether termination of the respondent's parental rights was in the child's best interest, Berkowitz replied, `It's likely that that would be the case, because that would prevent a continuation of the children being in legal limbo. Because as long as [the respondent's] parental rights are still in existence, and [the child is] still in foster care, there's always the possibility of a change, so they can't really settle in. They can't really attach to somebody else, and they can still hang on to the fantasy that [the respondent's] going to come back and they're going to live happily together forever after. Whereas if [the respondent's] legal rights are severed, and they attach and they stabilize and they have some permanency and some family belongingness, and then [the respondent] does rehabilitate and is there and could be a kind of extra family resource, there could be some purpose to — if it's in their best interest — for some open adoption or open permanent foster care or contact that would be in their best interest. But otherwise, it's just continuing the psychological limbo that they live in and that they feel like no one wants them permanently.'" In re Davonta V., 98 Conn.App. at 51 (footnotes omitted).
"Although the court heard contradictory testimony from the child's guardian ad litem, Mildred Doody, it was entitled to credit Berkowitz' testimony as more reliable. `It is within the province of the trial court, as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence . . . Where testimony is conflicting the trier may choose to believe one version over the other . . . as the probative force of the evidence is for the trier to determine.' (Citation omitted; internal quotation marks omitted.) Briggs v. McWeeny, 260 Conn. 296, 327, 796 A.2d 516 (2002)." In re Davonta V., 98 Conn.App. at 51-52.
The Appellate Court also recently has "recently observed that `[t]he 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, cert. granted on other grounds, 276 Conn. 903, 884 A.2d 1024 (2005)." In re Halle T., 96 Conn.App. 815, 817, 902 A.2d 670 (2006). In such decision, the Appellate Court also noted: "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.
In In re Rachel J., 97 Conn.App. 748, 761, 905 A.2d 1271 (2006), the Appellate Court noted, with respect to a claim that the trial court erroneously found that it was in the child's best interest to terminate the parental rights of the respondent parent: "The respondent offers scant analysis of this claim, which is predicated solely on the court's finding that a bond existed between [minor child] R and the respondent. Our courts consistently have held that even when there is a finding of a bond between parent and a child, it still may be in the child's best interest to terminate parental rights. See, e.g., In re Tyqwane V., 85 Conn.App. 528, 536, 857 A.2d 963 (2004); In re Ashley S., 61 Conn.App. 658, 667, 769 A.2d 718, cert. denied, 255 Conn. 950, 769 A.2d 61 (2001); In re Quanitra M., 60 Conn.App. 96, 106, 758 A.2d 863, cert. denied, 255 Conn. 903, 762 A.2d 909 (2000). Furthermore, the existence of a bond between parent and child can spawn negative consequences, such as in this case, in which R attempted to protect the respondent from discovery of the abuse." (Footnotes omitted.) As in Davonta V., the trial court in Halle T. focused on the child's need for permanency: "The court, in considering the best interest of the child, inter alia, focused on her need for permanency, the positive situation with the foster parents and the respondent's continuing inability to obtain a competent understanding of her medically complex status and its corresponding negative long-term effects on her future development." In re Halle T., supra, 96 Conn.App. at 841.
If the court, inter alia, (a) in the face of the compelling evidence placed before it of the mother's continuing failure to parent and to protect her children, which such failure led to the involvement with her family of child protection agencies in Florida, New York and Connecticut, and the removal from her of the children in this case, (b) in the face of the mother's subsequent inability to care for Jaime and the teenage older brother after they were reunified with her in 2005, and (c) in light of the circumstantial evidence of the mother's likely relapse into substance use and/or abuse after such children were placed with her in 2005, were to enter a stay of its TPR orders, it would deny each of the children such opportunity for long-awaited permanency necessary for their safety, security and development.
Three of the children have lived together with the same foster family for in excess of four years.
The court concludes that the neither the mother nor the children have a reasonable likelihood of success on appeal. Sadly, the mother has not been able in the past, and has no realistic expectation in the reasonable future of being able adequately to care for and to support financially all of her children who are named in this case, in addition to being able to support herself and her other minor child who currently lives with her (an adult child also lives with her). She has exhausted the state and federal benefits that were available to her, and at the trial she was a student who worked part-time at the community college she was attending. The minor child who lives with her has many special needs and issues that require a substantial amount of the mother's time and attention and have caused her to change her college program to a less intense program so she can be available to him. While they were in the mother's home, such child was threatening, aggressive and bullying to his siblings and half-siblings who are the subjects of this case, and, because of his behavior at the supervised visits between the mother and the children, in the fall of 2006 he was barred from attending such supervised visits.
"At the outset, we note the standard of review and legal principles germane to our discussion. `Our standard of review on appeal from a termination of parental rights is whether the challenged findings are clearly erroneous . . . The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous . . .
`On appeal, our function is to determine whether the trial court's conclusion was legally correct and factually supported . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses . . . Rather, on review by this court every reasonable presumption is made in favor of the trial court's ruling.' (Citations omitted; internal quotation marks omitted.) In re Sheena I., 63 Conn.App. 713, 719-20, 778 A.2d 997 (2001); see also In re Javon R., 85 Conn.App. 765, 768-69, 858 A.2d 887 (2004); In re Kristy A., 83 Conn.App. 298, 305-06, 848 A.2d 1276, cert. denied, 271 Conn. 921, 859 A.2d 579 (2004)." In re Halle T., supra, 96 Conn.App. at 822. See also In re Brittany J., Conn.App. (April 3, 2007). However, at the non-evidentiary hearing on the motions for stay, the attorney for the children stated that the children had appeal issues in addition to claims of insufficiency of evidence, including the role of the GAL at trial, the weight to be given to the forensic psychologist reports and conclusions and the weight to be given to a decision involving the teenage older brother.
The court thus concludes that entry of a stay will cause harm to the children by delaying their stability, security, development and growth, and the court denies each of the pending motions for such stay.
The attorney for the children has alleged, inter alia, in the motion for stay that the mother "has supported the children's relationships with their foster parents and maintains a cordial relationship with them herself . . ." and that the mother "has not impeded the growth of the children's bonds and relationships with the foster parents in the past." Neither of these allegations is consonant with the evidence at trial. The mother has lacked a positive, trusting and cordial relationship with the foster family that has cared for three of the children for in excess of four years.
MEMORANDUM OF DECISION
Despite the commissioner of children and families ("DCF") voluntarily continuing to provide visitation to the mother, although this court on February 23, 2007, terminated the mother's parental rights, pursuant to General Statutes §§ 17a-10a and 46b-59, the above children have "move[d] to continue visits with their mother . . ." while the mother appeals such terminations. On March 9, 2007, the mother filed a notice of appeal.
Although this statute was set forth as a basis for the motion, it was not discussed in such motion. At present none of the children are under an order of temporary custody or committed to the care, custody and guardianship of DCF. DCF has been designated by the court as the statutory parent of each of the children. See February 23, 2007, memorandum of decision.
"Sec. 46b-59. Court may grant right of visitation to any person. The Superior Court may grant the right of visitation with respect to any minor child or children to any person, upon an application of such person. Such order shall be according to the court's best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable, provided the grant of such visitation rights shall not be contingent upon any order of financial support by the court. In making, modifying or terminating such an order, the court shall be guided by the best interest of the child, giving consideration to the wishes of such child if he is of sufficient age and capable of forming an intelligent opinion. Visitation rights granted in accordance with this section shall not be deemed to have created parental rights in the person or persons to whom such visitation rights are granted. The grant of such visitation rights shall not prevent any court of competent jurisdiction from thereafter acting upon the custody of such child, the parental rights with respect to such child or the adoption of such child and any such court may include in its decree an order terminating such visitation rights." (Emphasis supplied.)
The attorney for the children alleged: "Under Conn. Gen. Stat. § 46b-59, the court `may grant the right of visitation with respect to any minor child or children to any person . . .'" and "that `the court shall be guided by the best interest of the child, giving consideration to the wishes of such child if he is of sufficient age and capable of forming an intelligent opinion.'" There was no discussion in such motion or at the hearing about the "visitation with respect to any minor child or children to any person, upon an application of such person . . ." language (see fn 2, supra), that, on its face, does not include or authorize the motion of the children currently before the court, or provide any standing to the children to use such statute.
It is alleged in such motion that "Jaime and Melody want immediate and regular weekly visits . . ." and that "Melinda and Jenira want visits on a monthly basis and on holidays . . ."
Their attorney for the children alleges that "maintaining visits is also in each of their best interests because they have maintained ongoing positive bonds with [the mother] throughout their lives and benefit from their relationship with her . . ." (Compare, however, the findings of the court in the February 23, 2007, decision terminating the mother's parental rights.)
In support of its position to maintain visitation, the attorney for the minor children cited three cases: In the Interest of Takeyma R., Superior Court for Juvenile Matters, Child Protection Session, Judicial District of Middletown, 2000 Ct.Sup. 2947 (Schuman, J., Mar. 17, 2000), In the Interest of Derrick G., Superior Court for Juvenile Matters, Child Protection Session, Judicial District of Middletown, 2000 Ct.Sup. 10547 (Schuman, J., Aug. 15, 2000), and In re Juvenile Appeal (Anonymous), 177 Conn. 648, 420 A.2d 875 (1999). In each of the trial court cases, parental rights were terminated, and no orders allowing post-termination visitation were entered by the court. These decisions are not helpful to the children in the present circumstances. In In re Juvenile Appeal, the Supreme Court reversed a trial court decision terminating parental rights, and stated the following about post-termination visitation:
The attorney for the children claims that this decision, where the court terminated parental rights, "indicat[es] that maintaining ties to the biological parent after termination is beneficial for the child . . ." Although not specifically referred to by such attorney, the decision contains the following: "This court must make a decision based on what is likely rather than what is certain. Under the facts of this case as they stand now, the most likely — and desirable . . . outcome is adoption by the H. family. This court finds that the best interest of the girls favors termination of the father's rights in order to maximize this likelihood. Perhaps the H. family can accommodate the father's interest in maintaining a relationship with the girls by permitting some form of contact or visitation. In general, this court is `not prepared to assume that the welfare of children is best served by a narrow definition of those whom [it] permit[s] to continue to manifest their deep concern for [their] child[ren]'s growth and development.'" Michaud v. Wawruck, 209 Conn. 407, 415, 551 A.2d 738 (1988).
How this decision is helpful to the children's position was not explained to the court.
"Finally, the plaintiff claims error in the denial by the Juvenile Division of the Superior Court of her August 1978 motion for immediate visitation pending appeal. While it is unfortunate, given our resolution of this case, that some contact between mother and child was not allowed pending the outcome of this appeal, we cannot say that in denying that motion the court abused its discretion. It has now been slightly over two years since the plaintiff's visitation rights were terminated by the DCYS, and they must now, of course, be immediately reinstated. It is difficult to know what changes these two years have wrought. We expect the DCYS now to marshal whatever resources are appropriate in order to assist the plaintiff in rebuilding and solidifying her relationship with her daughter. We express no opinion, of course, as to the possible outcome of such efforts." In re Juvenile Appeal (Anonymous), supra, 177 Conn. at 676. (Emphasis supplied.)
Such motion does not contain any reference to the interpretive gloss required by the Supreme Court for § 46b-59 to be constitutional. See, e.g., In re Application, Dan Ross, 272 Conn. 676, 710 n. 16, 866 A.2d 554 (2005), and Denardo v. Bergamo, 272 Conn. 500, 506-07, 863 A.2d 686 (2004). Nor does0 the motion contain any allegation about whether DCF is a "fit parent" within the meaning of § 46b-59 as interpreted by the Supreme Court. The only evidence sought to be offered by the attorney for the children is the testimony of Melody, who, according to such attorney, will testify that she wishes for visitation to continue.
"See Roth v. Weston, 259 Conn. 202, 205-06, 789 A.2d 431 (2002) ('[w]e conclude that [General Statutes § 46b-59] is unconstitutional as applied to the extent that the trial court, pursuant to the statute, permitted third party visitation contrary to the desires of a fit parent and in the absence of any allegation and proof by clear and convincing evidence that the children would suffer actual, significant harm if deprived of the visitation') . . ."
"Following the trial court's order in the present case, this court had occasion in two concurrent cases, namely, Roth v. Weston, supra, 259 Conn. 202, and Crockett v. Pastore, supra, 259 Conn. 240, to assess the constitutionality of § 46b-59 in light of the decision of the Supreme Court in Troxel. In Roth, we held that a person seeking visitation rights pursuant to § 46b-59 must satisfy certain jurisdictional and substantive requirements for the statute to be constitutional as applied. See Roth v. Weston, supra, 222, 229 and 233. Specifically, we held that for a court to have jurisdiction over a petition for visitation pursuant to § 46b-59 contrary to the wishes of a fit parent, `the petition must contain specific, good faith allegations that the petitioner has a relationship with the child that is similar in nature to a parent-child relationship [and] . . . that denial of the visitation will cause real and significant harm to the child . . . [T]hat degree of harm requires more than a determination that visitation would be in the child's best interest. It must be a degree of harm analogous to the kind of harm contemplated by [General Statutes] §§ 46b-120 and 46b-129, namely, that the child is `neglected, uncared-for or dependent.' Id., 234-35. We also held that once jurisdiction has been established, `the petitioner must prove these allegations by clear and convincing evidence.' Id., 235. In Crockett v. Pastore, supra, 246, decided the same day as Roth, we reiterated the jurisdictional requirements for a trial court to consider a petition for visitation pursuant to § 46b-59 over the objections of a fit parent. Unlike the present case, neither Roth nor Crockett involved a preexisting court order of visitation. Rather, in both of those cases, the nonparents sought to secure such an order over the objections of the minor child's fit parent."
For purposes of the pending motion, the court accepts the representation of such attorney about the substance of Melody's testimony.
Several decisions not cited by the attorney for the children actually discuss the question or issue of post-termination visitation: In re Meagan B., No. F04-CP02-005358-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown, 2005 Ct.Sup. 11935-ce (Jongbloed, J., Aug. 31, 2005); In the Interest of Kachainy C., Superior Court for Juvenile Matters, Child Protection Session at Middletown, 2000 Ct.Sup. 8710 (Rogers, J., Jul. 26, 2000); Ortega v. Dunbar, No. FA06-4005595 S, Superior Court, Judicial District of Danbury, Geographic Area 3 at Danbury, 2006 Ct.Sup. 16498 (Axelrod, JTR, Sep. 8, 2006); In re John N., No. W10-CP04-014526-A,1 Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown, 2006 Ct.Sup. 9242 (Bear, J., May 19, 2006); In the Interest of Steven J., Superior Court for Juvenile Matters, Child Protection Session at2 Middletown, 2000 Ct.Sup. 8398 (Quinn, J., Jul. 18, 2000); In the Interest of Felicia B., Superior Court for Juvenile Matters, Child Protection Session, Judicial District of Middletown, 1998 Ct.Sup. 15649 (Quinn, J., Dec. 29, 1998); and In re Nathaniel S., Superior Court for Juvenile Matters, Fourteenth District/Plainville, 1992 Ct.Sup. 3222 (Goldstein, J., Apr. 10, 1992).3
"After considering the children's sense of time, their need for a secure and permanent environment, the need to avoid future placements, and the totality of circumstances, the court concludes that termination of parental rights of respondent mother and father is in the children's best interest. It is accordingly, ORDERED that the parental rights of Tammi W. and Roger B. are hereby terminated as to the children Meagan and Brandon B. The Commissioner of the Department of Children and Families is hereby appointed the statutory parent for the children.
With regard to the visitation requested by father, in view of the court's orders terminating parental rights, visitation is not appropriate with the children and they have not expressed a desire for visitation. Nevertheless, the court encourages DCF to consider whether a final visit with father would be in the children's best interest at this time."
"Finally, this is not a case where the mother should be precluded from having contact with her daughter in the time that both of them have remaining in their lives. They enjoy a comfortable visiting relationship and Kachainy enjoys visiting with her siblings who live with Nilda. The court therefore strongly recommends that DCF allow visitation to continue during the time period it remains the statutory parent of this child and that it encourage the adoptive mother to allow visitation in the future. Visitation should continue so that Kachainy's mother, in whatever small way, can continue to offer Kachainy love, comfort and support."
"Many of the facts that give rise to the defendant's motion to transfer are not in dispute. The plaintiff is the maternal grandmother of two minor children. The parental rights of both of the children's natural parents were terminated by the Juvenile Court and the defendant was named statutory parent and legal guardian of the minor children. The plaintiff petitioned the Juvenile Court to open the judgment terminating parental rights to allow her to intervene in that action and petitioned to gain visitation with the children. Those petitions were denied by the Juvenile Court. The present action brought by the plaintiff for visitation with the two minor children was filed pursuant to General Statutes § 46b-59. On May 15, 2005, following a hearing, this court denied the defendant's motion to dismiss. On July 31, 2006, this court held a hearing on the defendant's motion to transfer and the plaintiff's objection thereto. The Juvenile Court continues to have jurisdiction over the minor children pursuant to Connecticut General Statutes § 17a-112(o). The Juvenile Court holds hearings on the defendant's progress in implementing its permanency plan every ninety days. There is an extensive record at the Juvenile Court including court-ordered psychological evaluations of the minor children and numerous social studies.
In objecting to the motion to transfer, the plaintiff raises a number of arguments. The plaintiff first claims that only the Superior Court has proper subject matter jurisdiction over a visitation petition. The court is not persuaded by that argument. In the case of In re Jennifer P., 17 Conn.App. 427 (1989), the Appellate Court found that a former foster parent has standing to seek visitation under General Statutes § 46b-59. The Appellate Court reversed the trial court that held that a former foster mother does not have standing. The case was remanded to the Juvenile Court for a hearing on the merits of the application for visitation. The plaintiff further argues that the Superior Court has proper jurisdiction since the Juvenile Court has denied plaintiff access, though it has continued jurisdiction over the pre-adoptive proceeding. It is true that the Juvenile Court denied the plaintiff's motion to intervene, which motion was dated February 10, 2006, and denied the plaintiff's motion for visitation dated February 10, 2006. The denial of both motions was following a hearing in which the Juvenile Court heard arguments by both counsel prior to denying both motions. The transcript does not reflect on what grounds each motion was denied. The motion for visitation did not include a statement that it was filed pursuant to § 46b-59. From a review of the transcript of that hearing, it is impossible to determine upon what grounds the motion for visitation was denied. This court agrees with the plaintiff's alternate argument that there is concurrent jurisdiction in this matter to hear a visitation petition brought pursuant to § 46b-59. This court agrees with the defendant that in the interest of judicial economy the matter should be transferred to the Juvenile Court where there are extensive records of the case and the children have had an attorney appointed on their behalf in the Juvenile Court since November 28, 2003.
Accordingly, the motion to transfer is granted."
"If there is a termination of the mother's parental rights and DCF becomes John's statutory parent, it is DCF policy not to permit or facilitate visits by the biological parent who no longer has any parental rights. If they were willing, the adoptive parents, on their terms, could permit the mother to continue to visit . . ." (In this case, however, DCF has continued to facilitate supervised visitation.)
"8. Whether sections 46b-121(b) and 46b-59 provide a basis for this court to order visitation for the mother with John after the termination of her parental rights:
Section 46b-121(b) provides, in relevant part, that ` . . . Any judge hearing a juvenile matter may make any other order in connection therewith that a judge of the Superior Court is authorized to grant and such order shall have the same force and effect as any other order of the Superior Court.' Section 46b-59 provides in relevant part that `The Superior Court may grant the right of visitation with respect to any minor child . . . to any person, upon an application of such person.' No such written application was filed in this matter for consideration during the termination of parental rights trial. See Fish v. Fish, 90 Conn.App. 744, 764, 881 A.2d 343 (2005): `Nevertheless, [i]t is fundamental in proper judicial administration that no matter shall be decided unless the parties have fair notice that it will be presented in sufficient time to prepare themselves upon the issue.' (Internal quotation marks omitted.) Connolly v. Connolly, 191 Conn. 468, 475-76, 464 A.2d 837 (1983).'"
"However, in considering the appropriate disposition in a termination of parental rights case, any visitation order would be inconsistent with the judgment being sought. The purpose of a termination judgment is to vest legal authority over the children with the statutory parent, adoptive parents or the guardians and to grant such entities or individuals the right to make decisions about the children's future life and their contact with others. As reflected in the language of Connecticut General Statutes § 46b-59, when parental rights or adoption are being considered by a court of competent jurisdiction, termination of visitation orders issued under that statute may also be ordered . . ." (Emphasis supplied.)
"While the court treated the motion for visitation as amended as a request for transfer of guardianship, the testimony of the paternal relatives and the arguments of counsel for custody and visitation continued to reflect their confusion about the purpose of the dispositional hearing. When disposition is being considered in a termination of parental rights cases, any visitation order would be inconsistent with the judgment being sought. The purpose of such a judgment is to vest legal authority over the children with the statutory parent or the guardians and to grant such entities or individuals the right to make decisions about the children's future life and their contact with others. As reflected in the language of Connecticut General Statutes § 46b-59, quoted by the intervenors, when parental rights or adoption are being considered by a court of competent jurisdiction, termination of visitation orders issued under that statute may also be ordered . . . The intervenors also sought to challenge the propriety of DCF's determination to prohibit visitation during the pendency of the co-terminous petitions. While there might be a time and place for such a challenge, such concerns are not relevant to the dispositional phase of termination petitions, where the focus is on what is presently in the best interests of the children.
`At the dispositional 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, 357, 641 A.2d 378 (1994). Even had there been such existing visitation, any permanent placement orders would require the end to such visitation, unless the children were placed with their relatives . . ." (Emphasis supplied.)
In footnote 2 to her decision, Judge Quinn added: "Connecticut General Statutes § 17a-112(I) contemplates in the event of termination of parental rights that either the Commissioner of the Department of Children and Families or another child placement agency will become the statutory parent of the children or that there will be a transfer of guardianship to an individual or individuals who become the guardians of the persons of the children. It does not contemplate custody of the children being awarded to third parties or visitation as in the dissolution of marriage context, Connecticut General Statutes § 46b-59, which states that any such visitation rights which might have been awarded may be terminated when there is an action regarding `the parental rights with respect to such child or the adoption of such child.'"
"However, the court expects that Nathaniel's wish to maintain some reasonable contact with his mother will be honored by DCYS and any prospective adopting family. 46b-59; Michaud v. Wawruck, 209 Conn. 407, 551 A.2d 738 (1988). Nathaniel is already old enough to initiate contact by phone with his mother. He is wise enough to recognize his need to bond, but is unwilling to cavalierly discard his natural mother. His wishes should be respected if in his best interest."
No order requiring visitation was entered in any of the cases cited by the attorney for the children or in any of the cases in which § 46b-59 was considered after termination of parental rights. The attorney for the children has not alleged or proved any special need, reason or circumstance that would require a result different from the results in such cases. Additionally, pursuant to Practice Book § 61-11, there is no automatic stay of this court's decision, a clear policy determination that the status quo is not automatically expected to remain in place pending any appeal, and the court has denied the motions to stay filed by the mother and the children. (Memorandum of Decision, March 30, 2007.)
"Sec. 61-11. Stay of Execution in Noncriminal Cases . . . (b) Matters in which no automatic stay is available under this rule [.] Under this section, there shall be no automatic stay . . . in juvenile matters brought pursuant to chapters 26 through 35a . . . (e) Motions to request stay [.] Requests for a stay pending appeal where there is no automatic stay shall be governed by Section 61-12."
Thus, even assuming that the children can utilize Connecticut General Statutes § 46b-59 as a basis on which to seek continuation of visitation with their biological mother, any visitation order entered by this court after the termination of such mother's parental rights would be inconsistent with such termination. As Judge Quinn wrote in her Felicia B. decision: "The purpose of such a judgment is to vest legal authority over the children with the statutory parent or the guardians and to grant such entities or individuals the right to make decisions about the children's future life and their contact with others . . ." See footnote 13, supra. See also footnote 12.
For all the reasons set forth herein, the children's motion for visitation is denied.
"Sec. 61-12. Discretionary Stays[.] In noncriminal matters in which the automatic stay provisions of Section 61-11 are not applicable and in which there are no statutory stay provisions, any motion for a stay of the judgment or order of the superior court pending appeal shall be made to the judge who tried the case unless that judge is unavailable, in which case the motion may be made to any judge of the superior court . . . A temporary stay may be ordered sua sponte or on written or oral motion, ex parte or otherwise, pending the filing or consideration of a motion for stay pending appeal. The motion shall be considered on an expedited basis . . ."