Opinion
W10CP16017326A
06-11-2019
IN RE PRESTON B.[*]
UNPUBLISHED OPINION
OPINION
Boland, J.T.R.
This memorandum addresses a petition seeking the termination of the parental rights of Krista D. and of Noel B., respectively mother and father of Preston B., born January 5, 2012. Also before this court at the time of trial is a motion filed by a paternal uncle, Doyle B., seeking a transfer of Preston’s guardianship to him. For the reasons set forth below, the parental rights of each parent are terminated, and the motion for transfer of guardianship is denied.
I. Procedural Background
A. Filings by Department of Children and Families ("DCF")
The child’s involvement with this court began on December 15, 2016, when the Commissioner of the Department of Children and Families filed herein a motion for an emergency order of temporary custody and a petition alleging that the child had been neglected or abused. The court (Spellman, J.), granted the OTC motion on an ex parte basis. On December 16, 2016, mother was served in hand with copies of both pleadings. Service of process on father, who lives out of state, was made pursuant to an order of notice. Both appeared on the date scheduled for hearing on the take custody order, December 20, 2016, and counsel was appointed to represent each of them. The OTC was sustained by the court (Foley, J.) on January 19, 2017. Both upon the issuance of that order, and upon its hearing before the court, specific steps were promulgated and delivered to both parents advising them of what needed to be done to permit their reunification with their child.
The initiating neglect petition alleged that the child had been neglected for reasons other than being impoverished by being denied proper care and attention, physically, educationally, emotionally, or morally; or by being permitted to live under conditions, circumstances or associations injurious to their well-being. On September 9, 2017, Judge Spellman adjudicated the child to be neglected, and committed him to DCF. On that occasion, the court reviewed the prior lists of specific steps and reiterated that they addressed the items needed on the part of both parents to reunify the child with either of them.
On November 29, 2017, Judge Spellman approved a permanency plan of termination of parental rights and adoption.
On February 7, 2018, DCF filed the petition seeking termination of parental rights which is one focus of this memorandum. As to both parents, DCF proceeded under the authority of General Statutes § 17a-112(j)(3)(B)(i), and alleged that following the adjudication of neglect, each parent "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 this life of this child."
On April 1, 2019, this court accepted Noel B.’s consent to the granting of the petition, and allowed DCF to amend its petition to allege consent as its sole ground with respect to him. Sec. 17a-112(i), CGS, provides that a parent’s consent is a sufficient foundation for an order terminating parental rights as long as the court finds that (1) upon clear and convincing evidence, the termination is in the best interest of the child, and (2) such parent has voluntarily and knowingly consented to termination of the parent’s parental rights with respect to such child. I made the requisite findings as to the voluntariness of the consent at the April 1 hearing. The findings related to the child’s best interest are set forth below.
It is indisputably a matter of record, and this court thus finds, that as to ground (B)(1), the statutory pre-condition of a prior neglect adjudication was met when Judge Spellman made an adjudication of neglect in September of 2017. The adjudicatory question to be resolved today is whether Krista has achieved or failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time she could assume a responsible position in this child’s life considering his age and particular needs.
There is no tribal involvement indicated here. There is no action pending in any other court which would affect Preston’s custody, and this court has jurisdiction to enter orders with respect to it. The court conducted a trial in this case on June 4, 2019. Accompanied by her counsel, mother attended and was present throughout the trial.
II. Mother’s Competence
Since this case began, mother’s competence has been a constant concern. In this context, "competence" is understood to mean that a person is able to understand the proceedings against her and is able to assist her counsel in her own defense; General Statutes § 54-56d; In re Alexander V., 223 Conn. 557, 563 (1992).
The affidavit supporting the OTC reveals that the department’s decision to seek that order followed about six months of involvement with the family. Precipitating that involvement was her report that the child had been sexually abused by her then paramour. She described her son as suffering from vague, sexually associated aches and pains, and later as acting sexually aggressively towards her. An extensive investigation ensued which involved therapeutic and forensic counseling for both mother and child, resulting in the conclusion that no abuse of the child had in fact occurred. Rather, workers concluded, mother herself had been a childhood victim of sexual assault, and was projecting that experience upon her then four-year-old son. By December, that projection manifested in her persistently reporting her suspicions to the child, practically as a sole and continuous message. As a result, he was beginning to exhibit the effects of trauma due not to third-party predation but to his mother’s perseverant insistence that such predation had occurred when it had not. If that were not bad enough, she was simultaneously and frequently reporting that she could not remember massive portions of her recent significant history, including, for instance, the name of the man she had been living with throughout most of that six-month period.
On June 15, 2017, Dr. Vinneth Carvalho, M.D., tendered to the court her evaluation of mother’s competence prepared in response to an order issued by Judge Spellman. Her conclusion then was that mother "did not exhibit the capacity to fully understand and appreciate the nature of the court proceedings as they pertained to ... custody issues ... and did not exhibit the capacity to assist her attorney in her defense." On that date, mother was thirty-three years old. The report includes a lengthy history of her mental health issues that had begun in her childhood and resisted multiple therapeutic interventions. Although in the evaluator’s interview with her she displayed a superficial orientation as to time and place, she likewise made a number of delusional statements. For instance, she opined, repeatedly, that at some point someone had inserted a "chip" into her brain through which others could control her speech. She feared that her primary psychiatrist was planning to subject her to electroconvulsive therapy, despite that doctor’s indication that there was no such plan and that mother had more than once been told that there was no such plan. She reported that her former husband was involved in a sex-trafficking ring, without any evidence of such. She repeated her allegations that her son had been sexually assaulted by her boyfriend in the second half of 2016, as outlined above. All of these departures from reality confirmed for this evaluator the validity of her earlier diagnoses: Delusional Disorder; Autistic Spectrum Disorder; and Chronic Posttraumatic Stress Disorder. The only hopeful detail included was the doctor’s expectations that an appropriate pharmaceutical regime could help her battle her demons.
On June 28, Judge Spellman found her to be incompetent, but restorable. At that time, a trial on the neglect petition had been scheduled to begin on September 8. At a subsequent calendar, he ordered that Doctor Carvalho do a follow-up evaluation to assess Krista’s progress in overcoming the deficiency noted in the first report. He also appointed a guardian ad litem to assist her in her subsequent involvement with this court.
After a ninety-minute meeting with her in mid-August, the evaluator found that mother had not followed her (and her treating psychiatrist’s) prescriptions for medications. Instead, she had gone to her primary care physician, and reported that he concluded she was free of mental illness and not in need of any medication. That is her report, not his, and even if he reached that conclusion he did so on the limited basis of knowing what she chose to tell him. What she told that evaluator in August, but apparently had not told her PCP, was that she now had evidence of the chip implantation, and she went through a lengthy display of that evidence which included items she had found on the internet and downloaded to her computer. This display included "evidence" that DCF had commissioned this misappropriation of her thought processes. The evaluator’s August 25 report reached the same conclusion as had the June 15 edition. On September 8, Judge Spellman found mother again to be incompetent, this time unaccompanied by any decision relative to restorability. He further found that petitioner had proven the allegations of its petition claiming that the child was neglected.
After the termination petition was filed in February of 2018, Judge Spellman ordered a third evaluation of mother’s competence, this one conducted in the spring of that year by a new expert, Edward Rabe, M.D, Ph.D. His July 5, 2018 report states that in the fall of 2017 mother had been using visits with Preston to convey to the child a family history that included multiple alien figures and an epical struggle in which she was divinely-chosen to save the world. Along with this elaborate and impossible account, she regularly told him that he was afflicted by various maladies that required special therapies. She spoke to herself at length. Among other effects, these symptoms propelled the child into an hysterical bout of tears on one occasion and led DCF to move to suspend her visits with him, a motion which Judge Spellman granted ex parte on October 25 and to which she consented at a hearing held on November 1.
Later that same day, she showed up at a local bank announcing that she was its president, and began giving orders to staff. Police were called, and she wound up admitted to a local psychiatric hospital for acute care. She remained hospitalized there from November 1 through December 4.
Some details of the history of that hospitalization suggest that her discharge resulted as much from expiration of her insurance coverage as from success in meeting her need for treatment.
Between the fall of 2017 and June 15, 2018, when Dr. Rabe interviewed her, she remained faithful to her reports of being controlled by others via an inserted chip. She reiterated her belief that her ex-boyfriend had assaulted her son. Her reports as to whether or not she was taking prescribed medications were inconsistent. Nonetheless, because she showed some insight into her situation and was able to articulate a correct understanding of legal terms and the functions of various actors in this setting, including her attorney, Dr. Rabe assessed her as both capable of understanding the court proceedings and capable of assisting that attorney in her own defense. When Judge Spellman reviewed that report at a hearing on August 22, he acknowledged its unequivocal conclusion, but expressed his own skepticism about it. He decided that the guardian ad litem should continue in that role, and scheduled the termination trial to commence on November 13.
A few days prior to the trial date, mother’s counsel reported that her client had discontinued medications, causing renewed concern on her part that mother would be unable to assist her at trial. She requested a fourth competency evaluation. Dr. Kelly Rogers was appointed to perform that, and the November 13 trial date was moved to January 7, 2019. It was expected that a hearing on the question of competence was also to be conducted at that time. Dr. Rogers met with her on November 16 for over four hours, and she described her history in terms consistent with her earlier reports and consistent as well with the three prior evaluations and a host of DCF-prepared reports which he reviewed. He prepared a report for the court dated December 2, in which he essentially concurred with the diagnoses reached by Dr. Carvalho, but, as had Dr. Rabe, determined that she was still able to understand the proceedings and assist her attorney. On January 7, this court heard his testimony. He described competency as a fluid condition that can wax and wane over time in light of the severity of one’s illness, external stimuli, and medication interventions, inter alia . He found that mother was at least conditionally able to understand the proceedings and assist her counsel, and recommended an update just prior to the start of trial. Because all parties requested a delay in the trial’s commencement, I ordered that it begin on April 1, and further ordered that Dr. Rogers meet with her on the morning of trial to see if any changes had occurred in the interim warranting a reconsideration of the competency issue.
On March 26, 2019, mother’s counsel moved for a further continuance of the trial, representing in the motion that mother had been involuntarily committed to the psychiatric unit at a Putnam hospital, that the hospital had filed an application in the probate court for appointment of a conservator for her, and that the hospitalization would foreseeably be of long duration. I granted that motion at a hearing on April 1, and after yet a later continuance all parties finally arrived for trial on June 4. The March hospitalization had resulted after police responded to her posting a number of irrational, indeed psychotic, statements on Facebook. Upon admittance she was delusional and dysfunctional, and refused medication. She was hospitalized from March 21 through May 6, with a diagnosis of Depression Psychosis. On April 22, the probate court granted the hospital’s petition for appointment of a conservator. Though Krista opposed that petition, this court was not informed that she has taken any appeal from that order. The conservator, as well as the guardian ad litem, both appeared at trial and were involved in assisting their ward during these proceedings.
On the morning of June 4, Dr. Rogers conducted an interview with mother lasting for over an hour, to see if his earlier assessment remained reliable. He testified that in the six months since he first met her, her situation had deteriorated precipitously. She is now submerged in her delusions that others (now aliens) control her via implanted microchips, to the extent that she no longer speaks in the first person but, in the channeled voice of an unnamed other, speaks of "Krista" in the third person and describes her as absent. He was unable to engage her in rational discussion of what these court proceedings were about, or what she should expect her attorney to do and what she would have to do to assist that attorney. He concluded that she was in a markedly different state than that in which he earlier had observed her, and that today she lacks competence both to understand these proceedings, and to assist her counsel. There was no evidence to refute that conclusion, and accordingly I accepted it and found her to be incompetent. After making that finding, while I was addressing her in the form of a Yasiel canvass, she informed me that "Krista was mute," that whoever was inhabiting her body did not understand what I was talking about, and that only that unidentified third party would be present going forward. I am not qualified to make diagnoses of mental illness, but her response did nothing to undermine my findings accepting Dr. Rogers’s conclusions.
See In re Yasiel R., 317 Conn. 773 (2015).
It has long been the law in this state, and indeed a requirement imposed by the United States Constitution, that child protection proceedings involving an incompetent parent require a court to assure that due process has been accorded that parent before state officers can interdict the profound relationship that parent has with his or her offspring; In re Alexander V., supra . Alexander V. does not stand for the proposition that the state is barred from attempting to terminate the rights of an incompetent parent, as that would thwart the state’s responsibility for the welfare of children within its jurisdiction whose entire future could be jeopardized by inaction. In re Karrlo K., 44 Conn.App. 73 (1998), expressly made just that point when it adopted as a correct statement of the law the decision of the trial court below that terminated the rights of an incompetent parent; that trial court had noted, in so doing, the impermissibility of allowing the child of an incompetent parent "to languish interminably in limbo," 44 Conn.Supp. 101, 105 (1994). See also In re Aida M., Docket No. H12-CP96-000640, Superior Court for Juvenile Matters (March 24, 1997, Foley, J.) ("It is well-established that mental illness does not prevent the court from proceeding in termination cases") (citations omitted).
This case is in a posture distinct from that of Alexander V., which resolved a marginally competent parent’s claim that the trial court had erred when it failed to conduct a hearing into her competency before adjudicating a petition seeking termination of her parental rights. The court in this forum has dealt with Krista’s competency over the past two years. This case thus presents circumstances similar to those involved in In re Justin S., Docket No. H 12 CP13-015236A, Superior Court, judicial district of Hartford (April 7, 2015; Burgdorff, J.). That trial court proceeded to terminate the parental rights of a mother found to be incompetent, after an earnest inquiry conducted to assure that she was being accorded due process in the proceeding. The decision includes a very useful set of questions to ask to determine whether appropriate safeguards have been met under such circumstances, as follows:
1) "Is it likely that the evidence presented could be refuted by a competent parent?"
2) Could "the parent be restored to competence within a reasonable period of time, considering the age and needs of the child?"
3) "If the mother were competent, is there proof of the existence or prospect of an existing parent-child relationship?" and
4) "Was the mother effectively represented by counsel and the guardian ad litem, given the difficulties attendant to such representation?"
Responding, first, to the final question, I find that both the attorney and the guardian ad litem provided their ward and client with as good a legal defense as any counsel could have done when one takes into account the difficult straits in which she finds herself. In addition to the fact that both are long-time members of the bar of this court who have appeared before this jurist on countless occasions over many years and always proven themselves to be capable, prepared, and effective, I find that they have performed specifically in this case with that degree of professional skill that the case demands. Each has studied mother’s particular needs carefully, has met with her as needed, has framed her concerns so as to be intelligible to the court, and has provided this court with such information helpful to her as they could possibly compile. The appointed conservator is a person previously unknown to the court, but nothing she said or did undermined the efforts of the other two professionals.
In adjudicating the petition, below, I will go into further detail with regard to the evidence adduced at trial. For the purpose of determining that this incompetent party was accorded due process, however, I believe it highly unlikely that if Krista had come before this court precisely at the moment when Dr. Rabe or Dr. Rogers had previously opined that she was competent she would then have been able to proffer any substantive evidence refuting that which did come in during this trial. The evidence supporting the conclusion that she is unable to raise her son is overwhelming.
Questions two and three address distinct concepts but share a common impediment to a positive prognostication. Krista now has no dependable parent-child relationship with her son; whether there is a "prospect" for the future development of such a relationship, and whether there is a real prospect of her being "restored to competence within a reasonable period of time," are both context-specific and require consideration of "the age and needs of the child." The child here is seven and a half years old and has been in DCF custody for about a third of his life. There is definitive proof, as described below, that in the past two and a half formative years he has psychologically dissociated himself from Krista. It would be unreasonable if not irresponsible to allow any longer time to pass in which she might achieve just the marginal status of competency to participate fully in these proceedings, since even if she did, that alone would just start the process of her reconstructing a parent-child relationship with him of even the most minimal degree of adequacy.
In light of these findings, made on the basis of all the evidence adduced at trial, I conclude that her rights to due process have been protected in this case and that going forward on the petition in spite of her incompetency does not clash with those rights.
III. Adjudication of the Petition
A. Standard
"In order to terminate a parent’s parental rights under § 17a-112, the petitioner is required to prove, by clear and convincing evidence, that: (1) the department has made reasonable efforts to reunify the family; § 17a-112(j)(1); (2) termination is in the best interest of the child; § 17a-112(j)(2); and (3) there exists any one of the seven grounds for termination delineated in § 17a-112(j)(3)." In re James O., Jr., 322 Conn. 636, 649 (2016). As indicated, the petition alleges Krista’s failure to rehabilitate following the neglect adjudication. James O. goes on to direct that "[w]hen the petitioner seeks to terminate a parent’s parental rights on the ground that the parent has failed to rehabilitate, ‘[t]he trial court is required, pursuant to § 17a-112, to analyze the [parent’s] rehabilitative status as it relates to the needs of the particular child, and further ... such rehabilitation must be foreseeable within a reasonable time.’ ... Therefore, the trial court must first determine the needs of the particular child before determining whether a parent has achieved a sufficient rehabilitative status to meet those needs." Id., 650-1 (citations omitted).
Finally, in light of the consent to termination given by father, the actual decision to terminate may only be made following an additional finding that that outcome is in the child’s best interest. As with all other requisite findings, that, too, must be made upon the basis of clear and convincing evidence.
B. Needs of the Child
Preston is seven years and five months old at this time. As with any child of such a young age, he is entirely dependent upon adults for his material needs, including shelter, nutrition, education, medical care, and so on. Preston was four years and eleven months old when the department intervened on his behalf and undertook his custody. Prior to that moment, he had been subjected for months, at least, to his mother’s fervent but inaccurate insistence that he had been a victim of sexual abuse. Her obsession with that fantasy displaced all reasonable interaction with this child, and could soon have led to an overwhelming of his own perceptions and sense of belonging in the world. Thus in addition to such a young child’s obvious needs, he also needed, acutely, respite from her crusade and dominance.
In addition, he needs, as indicated in In re Davonta V., 285 Conn. 483, 494-5 (2008) "[s]table and continuous care givers [that] are important to normal child development. Children need secure and uninterrupted emotional relationships with the adults who are responsible for their care."
C. Krista’s Ability to Respond to the Child’s Needs
1. Background
Krista’s own upbringing was tumultuous. Following her parents’ divorce, she lived at times with two different stepmothers and one stepfather, lived in at least four different states and attended four different high schools (before dropping out in the eleventh grade). She left her first husband, whom she married at age 18, after six months; she discovered that he was physically and sexually abusive. Noel B. was her second husband. She stayed married to him for nine years, although she describes him as a predator and he is in fact a pedophile and he admits to a fondness for child pornography.
As a young child she was diagnosed with ADHD, and later, high-functioning autism. She was prescribed various medications and took them throughout her youth. She has an extensive history of sexual abuse throughout her childhood. When DCF became involved on Preston’s behalf in July of 2016, it assisted her in finding a psychiatrist to work on her past. Initially she thought that therapy was helpful, but terminated those services after several months when she suspected that her providers were on the verge of subjecting her to electro-shock therapy or transmagnetic stimulation therapy and otherwise came to doubt their fidelity to her. The treatment she received in those months clearly did not prevent the onset of the florid delusions observed towards the end of that year and later, as described above.
By the time of the OTC, and continuing through the time of the neglect adjudication made nine months later, she manifested undeniable signs of a debilitating compromise of her mental health, and with that, undeniable inability at that time to provide for her son’s needs.
2. Identified Elements of Her Rehabilitation
The primary goals set forth for Krista among the several editions of the specific steps delivered to her were to address her own trauma and mental health issues and their impact upon her parenting skills. As means toward those ends, the steps include directives that 1) she keep appointments with DCF, keep it informed of her whereabouts, and sign requested releases; 2) accept recommended counseling and services; 3) get adequate housing and a legal income; 4) avoid criminal justice involvement; and 5) visit with the child regularly and as often as DCF permitted.
As part of the competency hearing on June 28, 2017, the court issued a set of directives to her utilizing form JD-JM-106, captioned "Specific Steps," but indicated that those orders "relate only to Respondent’s restoration to competency and shall become null and void upon such finding." In light of the findings to that effect later made, this court is giving no weight to the content of that set of specific steps.
3. Krista’s Response to the Specific Steps, and Results
Petitioner’s January 17, 2018 Social Study for Termination of Parental Rights, together with addenda dated December 28, 2018 and May 31, 2019, describe her compliance with those directives in great detail.
a) The studies reveal that she has been largely compliant with the directives in the first category, although there have been a few missed meetings.
b) Krista has made no progress in attending to and benefitting from the programs and therapies to which DCF has directed her. To wit:
i) In the first half of 2017, DCF referred her to a program of Accelerated Resolution Therapy ("ART therapy"), and also to individual counseling. She withdrew from both of those services, as she did from the services of her own psychiatrist for the reasons indicated. On May 4, 2017, she emailed her several providers stating that "... I do not want my brainwaves raped. So I opt out of all type of Therapies." (sic).
ii) In August of 2017, DCF referred her to Northeast Clinical Specialists for psychological counseling. She attended three appointments and then withdrew.
iii) Since her May declaration she has cooperated with the evaluations of competency ordered in June of 2017 and in July and November of 2018, and again on the date of trial, but other than the Northeast Clinical meetings has refused to engage with treating psychiatrists and has refused the medications that they have prescribed for her. She instead claims that her primary care physician is a sufficient health resource, although it is clear that she is not relaying to him an accurate picture of her true circumstances. He is thus unable to address them or to refer her to a specialist who may be qualified to do so. He did not testify on her behalf at trial.
It appears that she may have continued sporadic involvement with her individual counselor for another three months in spite of her declared intentions, but she was terminated from that provider in August of 2017 due to inconsistent attendance.
c) Krista has rented a room in a home belonging to a single woman. The space is clean and well-maintained, but the lessor does not contemplate housing a child in addition to the respondent; this is therefore merely suitable housing for herself, but not a setting that would permit the reunification of Preston with her. She briefly had a steady job, according to her own uncorroborated report, but now depends for her subsistence upon alimony and child support payments from Noel, along with stipends from various governmental assistance programs.
d) She has had no criminal court involvement.
e) She visited with Preston on a weekly basis over the first nine months of 2017. Visits were suspended on October 25, 2017, as indicated above, and she has not seen her son since that date twenty months ago.
Throughout the thirty months that Preston has been in the department’s custody, Krista’s delusional states have increased in intensity and duration. She has spent over two months in involuntary psychiatric hospitalization, and recently has had a conservator appointed by a probate court following a determination that she is incompetent.
Generally, the merits of a termination of parental rights petition must be determined as of the date of the filing of the petition, which here occurred on February 7, 2018. When the ground relied upon is failure to rehabilitate, the court may consider the parent’s behavior between the filing date and the time of trial to see if even late efforts on the parent’s part may yet prove conducive to reunifying her with her child. Krista has not taken advantage of that extended time frame. The conclusion I reach on the basis of the aggregated evidence is that it clearly and convincingly indicates that Krista has not rehabilitated to a degree sufficient to justify the belief that within a reasonable time she could assume a responsible position in this child’s life. I find, therefore, that DCF has proven its allegation of failure to rehabilitate as outlined in § 17a-112(j)(3)(B)(1).
4) Reasonable Efforts to Reunify
Next, it is essential to determine, as required by § 17a-112(j)(1), whether DCF has complied with the requirement set forth in § 17a-111b(a), that it make reasonable efforts to unite each parent with this child prior to termination of their parental rights.
Here this statutory mandate is easily found to have been met. As to Krista, since the issuance of the OTC the department has made regular efforts to communicate with her and to involve her in the process of raising her son. Her response to its efforts is almost non-existent.
IV. Best Interest of the Child
§ 17a-112(j)(2) requires that this court separately determine, in conjunction with the findings just made, that the termination of the parental rights of each of these respondents is in the child’s best interest. Again, the standard of proof is clear and convincing evidence.
In making this determination, one must understand that "[t]he best interest standard ... is inherently flexible and fact specific and gives the court discretion to consider all of the different and individualized factors that might affect a specific child’s best interest"; In re Shanaira C., 297 Conn. 737, 760 (2010). Essentially, "[t]he best interests of the child include the child’s interests in sustained growth, development, well-being, and continuity and stability of its environment"; In re Baciany R., 169 Conn.App. 212, 227 (2016). In assessing those interests:
The court must consider the age of each child, the educational, medical, psychological (and sometimes psychiatric) needs of the child, the relationship that may exist ... with current caregivers and prior caregivers, the length of time the child has been in care and where, the current stability of the child or lack of it, and the various bonds the child has with various interested parties. This list is not exhaustive but is a good starting point when analyzing the situation to determine what is in the best interest of the child. Deeds, misdeeds, circumstances or events cannot cause the court to rule without consideration of the child’s best interest at present. How it might have ruled had the deeds, misdeeds, circumstances or events not happened is not relevant to the issue at hand. What might have been in the child’s best interest at the inception of the case may no longer be in his or her best interest today.In re Noella A., Superior Court, Judicial District of New London, Juvenile Matters at Waterford, D.N. K09CP09011902A et al. (March 24, 2011, Mack, J.).
A. With Respect to Noel R.
Noel has consented to the termination of his parental rights; the court is yet obligated to find that this decision is in his son’s best interest.
Even before DCF took custody of this child, Noel was non-custodial and his access to the child was dramatically circumscribed. He and Krista divorced in Georgia, and that state issued the original order awarding custody of the child to the mother. Due to the father’s proclivities toward deviant sexual behavior, by then already known to mother, the only visitation he was awarded with the child was on a supervised basis. He has exercised that right a few times per year, and consequently the child has only a limited understanding of who he is and what his role in his life should be. Preston does not identify Noel as resource for meeting any of his needs.
Since this case began, Noel has engaged in various services aimed at addressing his own personality disorders. It is not apparent that his motivation for this effort derives from a desire to be reunited with this child. He has supported Krista in her efforts to have Preston reunified with her, in spite of the obvious deficiencies surrounding her parenting. He expressly declines to offer himself as a resource at this time.
In light of the problems that inhibited Noel’s full parenting of Preston before DCF became involved, in light of Noel’s decision not to seek reunification with the child, and in light of Preston’s lack of recognition of his father as a meaningful resource for him, it is clear that termination of Noel’s parental rights is in his son’s best interest.
B. With Respect to Krista
Since mother has not consented to termination, § 17a-112(k) requires that the court make certain written findings pertinent to a determination of the child’s best interest. These criteria are:
In light of Noel B.’s consent to termination of his rights, these findings need only be made as to Krista.
(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;
DCF provided her with assistance in assessing and overcoming her mental health issues; in educating herself to the duties of a parent, including how to provide for her son’s basic survival needs; in maintaining a relationship with her son through frequent and productive visits; and in finding a stable home and job. Those services began as soon as soon as he was removed from her care, and continued for the next many months, even after she refused to be engaged in such services.
(2) Whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption and Safe Families Act of 1997, as amended from time to time;
DCF committed itself to delivery to mother of an array of services towards that end, as contemplated by this statute, and as enumerated in the specific steps which were entered here in December of 2016 and January of 2017, and reiterated in September of that year.
(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;
The specific steps ordered for mother directed that DCF provide her assistance in assessing and overcoming her significant mental health issues; in counselling to address that problem; in educating herself to the duties of a parent, including how to provide for her son’s basic survival needs; in maintaining a relationship with her son through frequent and productive visits; and in finding a stable home and job. DCF fulfilled its part of those orders. Mother’s compliance with those orders is insufficient.
(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;
Preston has had no exposure to Krista for almost two years.
In the first nine months after the OTC, he was placed in four separate foster homes, and had to be removed from each on account of bad fit between him and his foster families. He was acting out, exposing himself to safety risks, and struggling for a level of parental attention which none could provide to him.
In September of 2017, when the prospects for his being successfully placed must have looked somewhat bleak, he entered the home of J.F., a single woman. Almost from the start, he began to shine in her company. Early on he began to call her "Mom." In this trial, five witnesses including the DCF social worker, the child’s teacher and the school psychologist, the child’s therapist and his attorney, all spoke of his relationship with this prospective adoptive mother in the same terms: she is a loving and competent caregiver who understands his deep needs and is attentive to getting him the support he requires on their account. She has kept in constant contact with the school officials and the therapist, and facilitated his interactions with his peer group of fellow students. The twenty-one months she has been involved with him have not been entirely free of difficulties, especially at first, as Preston acted out in school and at times engaged in self-destructive behavior. When those events occurred, she responded appropriately with a combination of getting him help, and continuing the emotional support he clearly had been lacking in his earlier years. The frequency of those events has noticeably fallen off. He is fully bonded with her and healthily attached to her.
When he first entered that school system, one observer described Preston’s behavior as animalistic and lacking impulse control. Twenty-one months later, observers describe him as sweet, caring, loving and gentle. They also describe him as a precocious and very active young man who emphatically insists that he wants to be adopted by J.F. He exhibits palpable anxiety when he is confronted by the possibility that these proceedings could end with his being removed from her home and reunified with Krista. His therapist counseled that to remove him from the home of J.F. would likely be extremely detrimental to him. Touchingly, he attempted to enroll his fellow first-graders in a letter-writing exercise addressed to this court, to persuade the judge to grant the termination petition and open the way to his adoption.
Their teacher discouraged this plan.
Preston is also direct in voicing his attitude towards his mother. He knows who she is. He loves her. He wants nothing less than to be returned to her care.
(5) The age of the child;
Preston was born on January 5, 2012, and is seven years and five months of age.
(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;
Krista has effectively refused all efforts towards adjusting her circumstances and conduct to make it in Preston’s best interest to return to her. Her persistent refusal to acknowledge the depth of her mental health problems and to avail herself of science-based means of alleviating those problems are well documented. Even after her behavior led to a cessation of contact with her son, she has persisted in the defense of her self-diagnoses.
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 .
There is no credible evidence that anyone has impeded Krista in her efforts to maintain a relationship with Preston, or that anyone other than Krista herself is in fact the source of this problem. She has opted against making any of the adjustments necessary to overcome those deficiencies. As to her economic circumstances, the petitioner has offered her the services needed to address her mental health issues despite her minimal income and wealth. It is also obvious that her impecunity is a foreseeable additional consequence of her inability to restore herself to mental health.
Krista contests the termination, whereas Noel expressly declines any role in his son’s life. His effective indifference to this child, and Krista’s failure to rise to the level of parenting required of her, are a sufficient foundation for a finding that Preston’s best interest will be promoted by termination of the parental rights of each of them.
The additional factor that Preston will not by virtue of such an adjudication be cast adrift into the sea of children awaiting rescue by an adoptive family that may never be found is a bonus. He has spent almost two years now in the care of a person who has proven her ability to provide for all his material needs and who appears uniquely able to also provide for his emotional and moral needs, and who is eager and willing to legally adopt him. The vacuum existing in his biological family warrants termination in its own right, and the positive prospects of life for him in the home of this adoptive mother are a fortunate coincidence.
V. The Guardianship Motion
The court must also decide, by way of disposition, whether or not to grant paternal uncle Doyle’s non-frivolous motion for transfer of guardianship.
Doyle alone moved to intervene and seek guardianship. He is married. While his wife filed no legal requests in her own right, she appeared in his support during the entire trial and through his attorney voiced her complete endorsement of her husband’s quest and the consequent effects that would have upon her and her other children should the court rule in his favor.
A Standard of Decision and Burden of Proof
When ruling upon a motion for guardianship, "the court must first determine whether it would be in the best interest[s] of the child for guardianship to be transferred from the petitioner to the proposed guardian.[Second, ] [t]he court must then find that the third party is a suitable and worthy guardian"; In re Mindy F., 153 Conn.App. 786, 802 (2014). Though that court numbered the two criteria "first" and "second," it indicated that the sequence in which they must be determined is not rigidly prescribed. The decision goes on to note that in the ordinary case, "the moving party has the burden of proof that the proposed guardian is suitable and worthy and that transfer of guardianship is in the best interests of the child." In that regard, this is an "ordinary case," and Doyle bears the burden of proof on both criteria.
B. Merits of the Guardianship Motion
Doyle recently retired after a twenty-five-year military career, and now works as a well-paid building supervisor in a southern state. He is happily married and the father of three adopted children (siblings). He expresses love for Preston and the expectation that together with his wife they can meet all of this child’s needs. In addition to his testimony supporting his motion, he introduced a copy of an Interstate Compact on the Placement of Children study. Dated April 13, 2018, the report is quite detailed and even documents that the family dog and cats have been properly vaccinated and that the couple has paid its bridge tax permit on their registered vehicles. Since the report concluded that "Placement May Be Made," he argues that he has been found to be a suitable guardian and that this court should send Preston to live with him.
See General Statutes § 17a-175 et seq. Generally speaking, an ICPC study is required before DCF may place a Connecticut child in the home of prospective guardians residing out of this state, with the aim of assuring that a child may only be placed out of state in a suitable environment and with persons or institutions having appropriate qualifications and facilities to provide that child with a necessary and desirable degree and type of care.
Ironically, and although this is a non-dispositive factor in ruling on his motion, he has recently altered the status quo upon which this report is grounded. Motivated by a desire to leave Preston in a setting closer to the home of his mother and mental health providers, Doyle has accepted new employment in Connecticut which he expects will begin in August or September. Since the present residence is well over a thousand miles distant, that job transfer requires relocating the entire family to a new home. The targeted location is the central area of the eastern half of this state. At present, where and when that home will be found is undetermined, and until it is located and purchased, paternal aunt and the children will remain in their present location. This introduces an element of great uncertainty into the adjudication of his motion, since granting it would require putting Preston’s future on hold until it was clear that the new setting possesses all of the qualities identified in the ICPC study and that placing Preston there would be appropriate.
What is dispositive is that removing Preston from his present prospective adoptive foster home would be directly adverse to the child’s best interest. "[A] trial court may rely on the relationship between a child and the child’s foster parents to determine whether a different placement would be in the child’s best interest"; In re Athena C., 181 Conn.App. 803, 821 (2018). In the child’s twenty months with J.F. a bond has formed between them which is of extraordinary strength. All the witnesses who have observed the child’s relationship with her are unanimous in their esteem for her qualities, and none spoke ill of the care that this foster parent has provided this child. She has given him a haven in the storm for almost two years; there is no reason to doubt that she will continue to do so.
Not only is there no identified problem with that home requiring that he be transferred out of it- there is clear and reliable evidence that transferring him out of it would be extremely detrimental to his well-being and contrary to his own articulated desires to stay there. All the evidence provided in support of the petition convincingly indicates a high degree of match between J.F.’s capabilities and the child’s needs as earlier identified, that is, to find respite from the chaos of his birth family, and to achieve permanence in his new situation. Rarely is the evidence so clear that such a happy match has been found.
Without disparaging Doyle’s good faith or sincerity in seeking to be made a guardian, this court doubts that he comprehends the profound dysfunctionality of the child’s earlier life and the severity of the needs that condition generated. Doyle opined that the love and care he and his wife could show to the child would pay off eventually. He said nothing about the predictable harm that would befall the child when taken from J.F.’s home, or transferred to a different school system where he would have to meet new educators and form new friendships. He further indicated that Preston’s future would include some contact with Noel B. and potentially with Krista, although there is no indication that meeting with either of them in the future would do him any good.
Finally, Doyle indicated that as a parent of children adopted out of another state’s child protection processes, he had some awareness of the contours of those processes that guided his decisions in this proceeding. With that level of sophistication, he also did not convincingly explain why, after Preston was taken into DCF custody in 2016, he waited until November of 2017 to formally intervene in this case, and then until July of 2018 to formally move for the transfer of guardianship. Over that year and a half, Preston bridged the gap between rootlessness after being taken from his mother and rootedness in J.F.’s home. There’s no way to determine whether the uncle would have succeeded if he had actively sought the placement of Preston at the very beginning, but it is undeniable that the passage of events in the interim render his application somewhat moot, and warrant that it be denied.
VI. Conclusion and Orders
This court finds by clear and convincing evidence that the best interest of Preston B. would be served by the termination of the parental rights of Krista D. and of Noel B. This child needs a secure and permanent environment. He is now in a healthy setting with a foster mother who expects to be able to care for him permanently. Considering the relationship that the child now has with that person, considering his age, sense of time, and the totality of his circumstances, It is accordingly
ORDERED, That the parental rights of Krista D. and Noel B. are terminated.
Additionally, the paternal uncle’s motion for guardianship is denied.
The Commissioner of the Department of Children and Families is hereby appointed statutory parent of this child for the purpose of securing a permanent placement for him. The Commissioner shall file with this court a written status of the efforts to effect such permanent placement and file such further reports as are required by state and federal laws.
Judgment may enter accordingly. [*] In accordance with the Connecticut General Statutes Section 46b-124, and the Connecticut Practice Book Section 32a-7, the names of the parties in this case are not to be disclosed and the records and papers of this case shall be open only for inspection to persons having a proper interest therein and only upon order of the Superior Court.