Opinion
No. M08-CP07-010391-A
April 28, 2008
MEMORANDUM OF DECISION
This memorandum of decision addresses a petition filed by Shannon R., the mother of the minor child, Rylyn R., to terminate the parental rights of the respondent father, Christopher F., with respect to Rylyn R.
The termination of parental rights is granted.
This case comes to this court by way of an appeal from the Probate Court for the district of Old Saybrook.
Shannon R. filed a petition in the Probate Court for the District of Old Saybrook seeking to terminate the parental rights of Christopher F., the father of Rylyn. The original petition is not included in the file forwarded from the probate court. It appears that the allegations in the original petition were that (1) Rylyn had been abandoned by her father, and (2) that there is no ongoing parent-child relationship between Christopher F. and Rylyn. The probate court ordered the Department of Children and Families (DCF) to conduct an investigation and appointed Gregory J. Kycia as attorney for the minor child. Assistant Attorney General (AAG) Helene Opocensky filed an appearance on behalf of the Department of Social Services (DSS) objecting to the approval of the petition on the ground that General Statutes § 45-717(f) requires that the petitioner's and respondent's financial condition be considered in order to determine what is in the best interest of the child. Christopher F. never appeared before the probate court.
General Statutes ?45a-717(f) provides that "(f) [a]t the adjourned hearing or at the initial hearing where no investigation and report has been requested, the court may approve a petition for termination of parental rights based on consent filed pursuant to this section terminating the parental rights and may appoint a guardian of the person of the child, or if the petitioner requests, the court may appoint a statutory parent, if it finds, upon clear and convincing evidence that (1) 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. If the court denies a petition for termination of parental rights based on consent, it may refer the matter to an agency to assess the needs of the child, the care the child is receiving and the plan of the parent for the child. Consent for the termination of the parental right of one parent does not diminish the parental rights of the other parent of the child nor does it relieve the other parent of the duty to support the child."
The probate court terminated Christopher F.'s parental rights, finding, by clear and convincing evidence, that (1) Christopher F. had abandoned Rylyn, and (2) that there is no ongoing parent-child relationship between Christopher F. and Rylyn. It is somewhat vague from the probate decree if an additional ground for the termination was consent.
DSS moved to appeal the probate court's decision. On March 5, 2007, the Probate Court for the District of Old Saybrook ordered that an appeal be allowed and that notice be given to Shannon R., Christopher F. and Attorney Gregory J. Kycia, on behalf of Rylyn.
Pursuant to the probate court's order, abode service was effectuated on Shannon R. on March 11, 2007. Attorney Kycia was served in hand on March 15, 2007. On March 23, 2007, notice was sent by registered mail to Christopher F. On May 3, 2007, service was confirmed for Attorney Kycia and Shannon R. A default was entered for Shannon R. for nonappearance (Cohn, J.). On June 22, 2007, an oral motion to open this default was granted (Cohn, J.). The case was judicially pre-tried on July 16, 2007 (Cohn, J.). The case was not resolved and the matter was scheduled for trial on November 13, 2007, and November 16, 2007.
A trial de novo commenced on November 13, 2007, and was completed on November 16, 2007. Attorney Gregory Kycia, the attorney who represented Rylyn in the probate proceedings, represented Rylyn at the de novo trial. Attorney Sarah Greaves represented Shannon R. at the de novo trial. DSS was again represented by AAG Helene Opocensky. At the trial de novo Attorney Greaves pursued two grounds for termination, abandonment and no ongoing parent-child relationship. Attorney Greaves did not pursue the ground of consent. Three witnesses testified at the hearing: Shannon R., Krista St. John, the DCF worker who conducted the investigation ordered by the probate court, and Kathleen Wells, a support enforcement officer with DSS.
After the completion of the de novo trial, this court in reviewing the file noted that service for Christopher F. was never confirmed. In order to remedy this, an in-court review was held on November 29, 2007. At that in-court review this court ordered that Christopher F. be served by both certified mail and by way of publication and a new plea date of January 18, 2008, was assigned. At that plea date service was not confirmed. At the request of Attorney Opocensky, who stated that contact had been made with Christopher F., this court set a new plea date of February 21, 2008. On February 4, 2008, service by way of publication in the Barrie Examiner, a newspaper of general circulation in the Barrie, Ontario, Canada area, was made giving notice to Christopher F. of the February 21, 2008, plea date. Service was confirmed by this court on February 21, 2008. Christopher F. was defaulted on this date for nonappearance.
Briefs were filed by all the parties on March 14, 2008.
ADJUDICATORY FINDINGS CT Page 9760
The hearing on a petition to terminate parental rights comprises two phases. In the adjudicatory phase, the trial court must determine whether any of the statutory grounds alleged by the petitioner exist by clear and convincing evidence. If a determination is made that one or more of the statutory grounds exist, the court then proceeds to the dispositional phase.As a preliminary matter this court must first address the scope of the appeal filed by the attorney general.
The body of that appeal states that: "[t]he State of Connecticut is aggrieved by said decision (the probate decision) because: a) termination of the father's parental rights is not in the best interest of the child; and b) termination of the father's parental rights will prohibit the State of Connecticut from receiving reimbursement of its past, present, and future expenditures on behalf of the minor child."
The attorney for the minor child argues in her brief that nowhere in the appeal does the AAG challenge that the adjudicatory grounds have not been established. Rather, as is pointed out by the attorney for the minor child, the AAG only challenges the determination of whether it is in the best interest of the child to terminate her father's parental rights. In support of this the attorney for the minor child cites Marshall v. Marshall, 71 Conn.App. 565, 570, 803 A.2d 919, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002), which states that "[t]he Superior Court, . . . cannot enlarge the scope of the [probate] appeal." Though this claim has some merit, this court will treat the appeal as if it challenged both the adjudicatory grounds and dispositional findings made by the probate court. Had counsel for the minor child made this argument prior to the commencement of the evidence, this court would have ruled on the scope of the hearing, and possibly not allowed testimony as to the adjudicatory grounds. At trial, however, all of the parties examined all of the witnesses as to both the adjudicatory grounds and dispositional phase. In fact, this court inquired of Attorney Greaves which adjudicatory grounds she was pursuing. It would now be unfair to, in essence, penalize the AAG after the conclusion of evidence by limiting her arguments solely to the dispositional aspect of this case.
1. ABANDONMENT
Shannon R. has alleged that Rylyn has been abandoned by Christopher F., in that he has failed to maintain a reasonable degree of interest, concern, or responsibility as to the welfare of Rylyn. This ground tracks the language contained in General Statutes § 45a-717(g)(2)(A) which states in relevant part that "the child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child." For the purpose of analysis, the cases below refer to General Statutes § 17a-112(j)(3)(A), which defines abandonment and mirrors the language contained in § 45a-717(g)(2)(A).
In commenting on § 17a-112(j)(3)(A), the Appellate Court has concluded that, "[a]bandonment focuses on the parent's conduct . . . A lack of interest in the child is not the sole criterion in determining abandonment . . . General statutes . . . § 17a-112(b)(1) [now § 17a-112(j)(3)(A)] defines abandonment as the [failure] to maintain a reasonable degree of interest, concern, or responsibility as to the welfare of the child . . . Attempts to achieve contact with a child, telephone calls, the sending of cards and gifts, and financial support are indicia of interest, concern, or responsibility for the welfare of the child . . . Abandonment occurs where a parent fails to visit a child, does not display love or affection for the child, does not personally interact with the child, and demonstrates no concern for the child's welfare . . . Section 17a-112(b)(1) does not contemplate a sporadic showing of the indicia of interest, concern or responsibility for the welfare of a child. A parent must maintain a reasonable degree of interest in the welfare of his or her child. Maintain implies a continuing reasonable degree of concern." (Internal quotation marks omitted.) In re John G., 56 Conn.App. 12, 20-21, 740 A.2d 496 (1999).
Rylyn was born on February 26, 2004. Christopher F. resided in Canada at the time of Rylyn's birth and continues to reside there. Shannon R. is a resident of Connecticut and gave birth to Rylyn in Connecticut. An indicium of abandonment is the contact between a parent and a child. Christopher F. has visited Rylyn three times. Shannon R. testified that she told Christopher F. that she would be induced and give birth on February 26, 2004. Christopher F., however, was not present for the birth of his daughter. Christopher F. did visit Rylyn about ten days after her birth. He spent a total of four hours over a two-day span visiting with Rylyn. Christopher F.'s next visit with Rylyn was approximately ten months later; this visit lasted a "couple of days." (Trial Transcript, November 13, 2007, p. 15.) His third visit occurred during July 2006, when he again visited Rylyn for a "few days." (Trial Transcript, November 13, 2007, p. 15.) All of the visits occurred in Connecticut. Shannon R. never prevented Christopher F. from seeing Rylyn or told him he could not see her. In fact, the initiative for the three visits were calls from Shannon R. She had to, in her words, "beg" Christopher F. to come visit his daughter. (Trial Transcript, November 13, 2007, p. 25, 41.)
The attorney general mistakenly stated that four visits occurred. (AAG's brief, p. 3.).
For purposes of the analysis of the issue of abandonment, Rylyn is a child with a multitude of serious medical conditions. Rylyn has been hospitalized on two different occasions, once for five days and the other for eight. Despite being told of these hospitalizations, Christopher F. did not come to visit Rylyn when she was hospitalized.
Rylyn's medical conditions will be discussed in greater detail below.
A second indicium of abandonment is the interaction between a parent and a child. When he does visit Rylyn, Christopher F. does not interact with Rylyn. As an example, Shannon R. testified that during the July 2006 visit, Christopher F., Shannon R. and Rylyn all went to the beach. At the beach, "it was nice out so we were playing in the water and, instead of playing with her [Rylyn], he [Christopher F.] just laid on the beach the entire time. He had no interaction with her at all. Nothing. Nothing. He — he — nothing." (Trial Transcript, November 13, 2007, p. 34.)
A third indicium of abandonment is the financial support a parent provides for a child. Christopher F. has contributed nothing financially directly or indirectly to Shannon R. to support Rylyn. Neither has he reimbursed the state for the aid it has given.
A fourth indicium of abandonment is if any cards or gifts have been given to the child from the parent. Christopher F. has not sent any cards or letters to Rylyn. Christopher F. never asks for photos of Rylyn. Other than a $1.99 bottle of bubbles, Christopher F. never bought a gift for Rylyn.
Christopher F. did not appear at either the underlying probate proceedings or the trial in this court. While nonappearance alone does not equal abandonment, it certainly is another factor for this court to consider.
Christopher F. verbally consented to the termination of his parental rights during the probate proceedings. Although his "consent" did not fulfill the requirements to effectuate that consent, nevertheless, it too is a factor for this court to consider.
Finally, the love, affection, and concern that a parent displays is an indicium of abandonment. When Rylyn was hospitalized, Christopher F. did not visit because, despite the fact that, "[Rylyn was] was really sick . . . he [Christopher F.] didn't care." (Trial Transcript, November 13, 2007, p. 16.) In fact, "[h]e [Christopher F.] wants nothing to do with her. He doesn't call. He doesn't send birthday cards. He doesn't care." (Trial Transcript, November 13, 2007, p. 31.)
Other than three visits, for which Shannon R. had to beg him to come and visit, and a $1.99 bottle of bubbles, Christopher F. has had not even, in the words of In re John G., supra, 56 Conn.App. 20, made a sporadic showing of "the indicia of interest, concern or responsibility for the welfare of [Rylyn]."
The ground of abandonment, therefore, has been proven by clear and convincing evidence.
2. NO ONGOING PARENT-CHILD RELATIONSHIP
The petitioner has alleged that there is no ongoing parent-child relationship between Rylyn and Christopher F. in accordance with General Statutes § 45a-717. General Statutes § 45a-717 provides for the termination of parental rights if, based upon clear and convincing evidence, it is proven to the court that, "there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day-to-day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child." General Statutes § 45a-717(g)(2)(C). Again, as previously stated, the language of 45a-717(g)(2)(C) mirrors that of General Statutes § 17a-112(j)(3)(D).
In commenting upon § 17a-112(j)(3)(D), the Appellate Court has stated that "the statute requires the trial court to undertake a two-pronged analysis. First, there must be a determination that no parent-child relationship exists, and second, the court must look into the future and determine whether it would be detrimental to the child's best interest to allow time for such a relationship to develop . . . It is reasonable to read the language of no ongoing parent-child relationship to contemplate a situation in which, regardless of fault, a child either has never known his or her parents so that no relationship has ever developed between them . . . In considering whether an ongoing parent-child relationship exists, the feelings of the child are paramount importance . . . The ultimate question is whether the child has no present memories or feelings for the natural parent . . . Feelings for the natural parent consist of a positive nature only." (Citations omitted; internal quotation marks omitted.) In re Kezia M., 33 Conn.App. 12, 20-21, 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993).
In re Kezia M.'s first prong requires the court to answer whether a parent-child relationship exists. The court file does not contain the original petition filed by Shannon R. to terminate the parental rights of Christopher F. The assessment prepared by DCF at the request of the probate court (Petitioner's Exhibit #1) states that the date of the assessment's home visit was October 23, 2006. Therefore, it seems reasonable to this court, being somewhat familiar with the pace of both probate proceedings and DCF, that the petition was filed on approximately October 1, 2006. Using the date of October 1, 2006, Rylyn, whose date of birth is February 26, 2004, was approximately two years and seven months old on the date the petition was filed. During this two years and seven months time span Christopher F. was in Connecticut approximately twelve days. Even if Christopher F. spent those entire twelve days visiting Rylyn, he has been with Rylyn for 1.29% of her life. This, however, is being generous to Christopher F., as in reality he did not actually spend this much time with Rylyn. As the testimony indicates, he spent only a small amount of time actually visiting Rylyn. For example, on his first visit he spent only four hours of a two-day visit with Rylyn.
Shannon R. testified that Christopher R.'s first visit lasted two days; his second visit a "couple of days;" his third visit a "few days." The court has calculated "few" and "couple" to each mean five days, ten total.
The AAG argues that, "the petitioner has put the onus on the father to make visitation. She has never offered to take Rylyn to Canada." (AAG's brief, p. 11.) The AAG's argument is disingenuous. On the one hand she argues that the trip for Christopher F. is difficult. The distance between Ontario and Old Saybrook, where Rylyn has always and continues to live with Shannon R., "is approximately 580 miles away from Saybrook, an automobile trip in excess of nine hours." (AAG's brief, p. 12.) For a twenty-four year old man the trip is not "a short and easy commute." (AAG's brief, p. 12.) Yet, somehow these factors of time and distance do not apply to a woman traveling with a young child with a myriad of medical problems. In commenting on the fact that Shannon R. did not take Rylyn to visit her father in Canada, the AAG states that Shannon R. has "refus[ed] to allow visitation in any manner other than as convenient for her." (AAG's brief, p. 11.) According to the AAG, Christopher F. was denied access to Rylyn because Shannon R. " would not accommodate the substantial geographical gulf." (Emphasis in original.) (AAG's brief, p. 16.)
The court is persuaded by the evidence that Rylyn's medical condition is such that travel to Canada to be with her father is detrimental to her health. For the purpose of addressing the issue of whether Shannon R. should travel to Canada with Rylyn to visit her father, it bears repeating that Rylyn is a child with a multitude of serious medical conditions that require constant, ongoing medical attention. Rylyn has been hospitalized on two different occasions, once for five days and the other for eight. Finding medical providers for Rylyn in Canada who can treat her multitude of medical problems and giving them time to familiarize themselves with her would jeopardize her health. Shannon R.'s decision not to bring Rylyn to visit Christopher F. in Canada is not a decision based on convenience. Rather, Shannon R. has acted prudently in not risking Rylyn's health by bringing her to visit her father in Canada.
Rylyn's medical conditions will be discussed in greater detail below.
For a parent-child relationship to exist, there must be involvement with a parent from whom positive feelings toward that parent can arise. This is especially so in the case of newborns and infants, and even more so in the case of a child with multiple, serious medical conditions. Little evidence has been presented about the involvement of Christopher F. with Rylyn. That is because Christopher F. has not chosen to involve himself with Rylyn. On those few occasions when Christopher F. has visited, he has not done those things that parents do with their infant child(ren). For instance, he does not play with Rylyn, he does not change her diaper and he has no interaction with her.
The AAG argues that Christopher F. had good reasons for this behavior. Specifically, she argues that "[t]he father had a difficult time relating to his handicapped daughter. He was only twenty-four years old. He had no experience with children. His sole association with children is his cousin Chad's daughter and maybe nephews and nieces." (AAG's brief, p. 3.) It is a tenet of our society that a man who fathers a child should develop a relationship with that child, no matter what the child's physical status is, the age of child or father, the father's experience with children or how far away the child resides. If you father a child, you accept the responsibilities of fatherhood. Christopher F. has not developed a relationship with Rylyn not for the reasons stated by the AAG. Rather, the evidence and testimony given at the hearing indicates that he does not care about Rylyn. A parent-child relationship, therefore, does not exist between Rylyn and Christopher F.
The court notes that not relating to his handicapped daughter is not an excuse for his behavior not to play with Rylyn, change her diaper or interact with her. It seems at times that the AAG sounds like an apologist for Christopher F.
The second prong of the analysis requires the court to determine if it is in Rylyn's best interest to allow additional time for the parent-child relationship to develop. Rylyn is at an age where consistency in relationships is important, especially given the nature and extent of her medical problems. Christopher F. has been absent from Rylyn for almost her entire life. While past performance is not a guarantee that an individual will act in the future as he or she has in the past, it is unlikely that Christopher F. will suddenly seek to become involved with Rylyn, especially given his attitude over the first two years and seven months of her life. Therefore, it is not in Rylyn's best interest to allow additional time for the parent-child relationship to develop.
Therefore, the absence of a parent-child relationship has been proven by clear and convincing evidence.
DISPOSITION
In the dispositional phase of a termination of parental rights case, the court must consider whether the petitioner has proven by clear and convincing evidence that termination is in the best interest of the child. In making this determination, the trial court can consider all events occurring prior to the date(s) of the dispositional hearing, including those occurring after the filing of the petition.
1. STATUTORY CRITERIA
Before making a decision whether to terminate the respondent father's parental rights, the court must consider and make findings on each of the six criteria set forth in General Statutes § 45a-717(h). In order to best address every issue, the court will discuss each of the six considerations separately. The court finds that the following has been established by clear and convincing evidence.
General Statutes § 45a-717(h) states that "[e]xcept in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child by a child-placing agency to facilitate the reunion of the child with the parent; (2) the terms of any applicable court order entered into and agreed upon by any individual or child-placing agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (3) the feelings and emotional ties of the child with respect to the child's parents, any guardian of the 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; (4) the age of the child; (5) 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 the child to the parent's home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (6) 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."
Services have never been offered to Christopher F. to reunite him and Rylyn. However, there is a valid reason for this. Christopher has not been involved in any facet of Rylyn's life. He has never manifested a desire to reunify with his daughter. He has never asked an agency to help facilitate the reunion of him and Rylyn. Shannon R. never asked an agency to help reunify Christopher F. and Rylyn. However, given his lack of involvement in her life and his "I don't care" attitude, Shannon R. was justified in not seeking help to reunify Christopher F. and Rylyn.
2. Whether the terms of any applicable court order entered into and agreed to by any individual or agency and the parent, and the extent to which all parties haveCT Page 9767
fulfilled their obligations under such order(s).
Again, because of Christopher F's actions, attitude, and nonappearance, no court orders were entered. 3. The feelings and emotional ties of the child with respect to the child's parent, any guardian of the child, 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 ties must be addressed.Shannon R. testified as to the fact that she is the primary care-giver of Rylyn. She takes Rylyn to doctors' appointments and to preschool. She performs various medical procedures on Rylyn. Krista St. John testified that Rylyn has a strong bond with her mother and her mother's family. Ms. St. John stated in her assessment report that Rylyn has a "great bond" with her mother and with the members of Shannon R.'s family (Plaintiff's Exhibit 1, p. 2). In contrast, Christopher F. has no bond with his daughter. He has had no relationship with Rylyn, because, as stated earlier, he wants nothing to do with her. Krista St. John substantiated this, testifying that "she [Rylyn] has no relationship with her father." (Trial Transcript, November 16, 2007, p. 21.)
4. The age of the child.
As of the last day of trial, Rylyn was approximately three years and nine months old.
5. The efforts the parent has made to adjust her or his circumstances, conduct, or conditions to make it in the best interest of the child to return to such 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.Christopher F. has made no effort to adjust his circumstances, conduct or conditions to make it in the best interest of Rylyn to return to him in the foreseeable future. As stated earlier, a trip by Rylyn to Canada is prohibited by her medical condition. Also, as was stated earlier, finding medical providers in Canada for Rylyn who can familiarize themselves with her afflictions and treat her multitude of medical problems would be difficult and would jeopardize her health. Christopher F. has not visited with Rylyn, other than three separate occasions, and he has made no attempt to move to Connecticut so that he could be close to her. In addition, all of the occasions in which he did visit were initiated by calls made by Shannon R. to Christopher F. He has not sent any cards or given Rylyn any gifts, aside from a bottle of bubbles. He has never sent money to Shannon R. to help support Rylyn and he has not paid child support.
6. The final consideration is the extent to which a parent has been prevented from maintaining a meaningful relationship with his or her child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any person or by the economic circumstances of the parent.Based on the evidence and testimony given at the hearing, this court is unaware of any unreasonable act or conduct by anyone, including any agency, or of any economic circumstance that prevented Christopher F. from having a meaningful relationship with Rylyn.
All of the six statutory criteria have been established by clear and convincing evidence and support that terminating Christopher F.'s parental rights is in the best interests of Rylyn.
2. BEST INTEREST OF THE CHILD ANALYSIS
Pursuant to General Statutes § 45a-716(b)(5), the Attorney General has standing in a termination of parental rights case that is transferred from Probate Court to the Superior Court. That section states: "[t]he Attorney General may file an appearance and shall be and remain a party to the action if the child is receiving or has received aid or care from the state, or if the child is receiving child support enforcement services, as defined in subdivision (2) of subsection (b) of section 46b-231."
DSS's main argument as to why it would not be in the best interest of Rylyn to terminate the parental rights of her father is financial. As will be addressed later in this opinion, the chance of Christopher F. reimbursing the state or paying support directly to Shannon R. above what the state provides is "slim to none." (Minor's brief, p. 8.) The real reason the AAG is pursing this appeal is because "[t]he petitioner should not be allowed to willy-nilly place the financial burden [of supporting Rylyn] exclusively on the citizens of the State of Connecticut without the powerful countervailing interest referred to in In Re Bruce [ 34 Conn.App. 176, 640 A.2d 643 (1994), aff'd, 234 Conn. 194, 662 A.2d 107 (1995).]" (AAG's brief, p. 12.) What this case boils down to is the AAG's contention that "by requesting termination of the father's parental rights, the petitioner is not assisting in pursuing support obligations due from the father. Rather, she is interfering with that requirement of eligibility contrary to the eligibility criteria articulated in Connecticut law. It makes no sense to have a law requiring an individual to assist the State in pursuing support obligations, only to allow that same individual to then turn around and terminate that support obligation for no articulated good reason." (Emphasis added.) (AAG's brief, p. 24.)
General Statutes § 45a-716 allows the Attorney General to be a party in a termination of parental rights case only if the child is receiving, or has received, aid or care from the state. The purpose of this legislation is noted in the remarks of Patricia Wilson-Coker, a former Commissioner of DSS. She remarked, at a hearing before the judiciary committee, that the purpose of the legislation would be to give the attorney general automatic standing in these types of cases. In her words this legislation "would permit the state to become a party in IV-D cases and insure the state and children's interests." Conn. Joint Standing Committee Hearings, Judiciary, Pt. 12, 2006 Sess., p. 3668. General Statutes § 46(b)-231(b)(12) provides that "IV-D agency means the bureau of child support enforcement within the department of social services created by General Statutes § 17(b)-149 and authorized to administer the child support program mandated by Title IV-D of the Social Security Act." Representative Lawlor, commenting on this legislation noted that "[t]his is an additional relatively technical change to the existing law. It doesn't change the substantive rights or obligations of any individual." (Emphasis added.) 49 H.R. Proc., Pt. 12, 2006 Sess., p. 6307.
The legislation making the Attorney General a party to a termination of parental rights case cannot be analyzed in a vacuum. It needs to be viewed in light of two important cases in this area that preceded this legislation.
In the first case, In re Bruce R., 34 Conn.App. 176, 640 A.2d 643 (1994), aff'd, 234 Conn. 194, 662 A.2d 107 (1995), the trial court granted the petitioner's request to terminate his own parental rights. The Appellate Court reversed the judgment of the trial court and held that when a parent whose rights are being terminated consents to the termination, General Statutes § 45a-715 "requires that the trial court consider, as one of the elements necessary to make the determination of what is in the best interests of the children, the financial condition of the natural parents." In re Bruce, supra, 34 Conn.App. 184-85. The Supreme Court later affirmed the Appellate Court's decision, favorably citing this language. In re Bruce R., 234 Conn. 194, 662 A.2d 107 (1995).
In the second case, In re Jessica M., 71 Conn.App. 417, 802 A.2d 197 (2002), the petitioner, likewise sought to terminate her own parental rights. The Appellate Court ruled that the Commissioner of Social Services had standing to challenge the termination of parental rights "because the decree [granting the termination of parental rights] adversely affects her statutory right to reimbursement from the petitioner of the state assistance social services formerly afforded to and currently provides for her children." In re Jessica M., supra, 71 Conn.App. 423.
Both In re Bruce R. and In re Jessica M. stand for the proposition that a parent cannot seek to terminate his or her own parental rights so as to abandon his or her financial obligation to support his or her child(ren). This has not been changed by the enactment of General Statutes § 45a-716(b)(5). That statute gives the Attorney General automatic standing if a child is receiving or has received aid or care from the state, or if the child is receiving child support enforcement services. However, the framework for analyzing why a parent is seeking to terminate parental rights vis-a-vis financial considerations and the best interest of the child is still the same.
This case does not present the situation where Christopher F. is seeking to terminate his parental rights to avoid his financial responsibilities. Shannon R. initiated the termination petition and stated that the reason she is seeking to terminate Christopher F.'s parental rights is her desire to name her mother and father as Rylyn's guardians in her will. The reason General Statutes § 45a-716 was enacted was to address "some instances of termination of parental rights, that have sort of, I guess I'd have to call it collusion, where someone who intends an ongoing relationship with a child terminates their parental rights because that would absolve them of paying child support. Sort of getting around the system by using the termination of parental rights statutes." Conn. Joint Standing Committee hearings, supra, p. 3673. There has been no evidence that the filing of this petition by Shannon R. is a ruse or a sham to facilitate Christopher F. in not having to pay child support. This court finds that it is unimaginable that Ms. R. filed this petition to relieve Christopher F. of his support obligations.
Shannon R. referred to her mother's husband, David J., initially, as her father. Subsequently, upon questioning by the court, she testified that David J. is in reality her step-father, however, because she referred to David J. as her father, the court will also refer to him as Shannon R.'s father or as Rylyn's grandfather.
Additionally, the AAG asked Shannon R. if she understood that if Christopher F.'s parental rights were terminated, she alone would be responsible for paying the state back TFA money that she received from the state. Shannon R. responded that she knew that she would have to pay this money back. At the conclusion of the testimony, Shannon R. made no motion to withdraw her petition, despite knowing that she alone would have to repay the state.
At the hearing, the AAG attempted to attack the reason Shannon R. gave for pursuing her petition by asking a series of questions as to Shannon R.'s health. After all why would a healthy young woman state as a reason for a termination of parental rights that she wanted her parents to be guardians of her daughter? The AAG submits that Ms. S. has "not presented any evidence that would in any way confirm that her death is imminent, or even likely, prior to the child attained her eighteenth birthday." (AAG's brief, p. 16.) The AAG thus concludes that Shannon R.'s interest in appointing a guardian for Rylyn is disingenuous and that she is really seeking to terminate Christopher F.'s "support obligation for no good reason." (AAG's brief, p. 24.) According to the AAG's logic, only when faced with imminent death would parents appoint a guardian for their children in their will. What the AAG fails to note is how common it is for many parents to designate in their wills guardians for their child(ren) if they should die while their child(ren) are young.
A casual search of the world wide web shows that there are a plethora of sites advocating that parents name guardians for their children in their wills. For example, the National Educational Association urges that "[i]f you have children, you should choose a personal guardian — someone to raise them in the unlikely event you can't." The National Education Association, located at http://www.nea.org/money/pf040530.html (Last visited April 23, 2008). Liz Pullman Weston, who writes for MSN states that "[d]eciding who will raise your young children if you should die often is a tough task — so tough that many parents never do it. Some just procrastinate . . . Your procrastination could take a toll on those you should most want to protect: your kids." MSN Money, located at http/articles.moneycentral.msn.com/RetirementandWills/ PlanYourEstate/WhoWillTakeCareofYourKidsIfYouDie.aspx (Last visited April 23, 2008).
The AAG cites In re Alissa N., 56 Conn.App. 203, 742 A.2d 415 (1999), cert. denied, 252 Conn. 932, 746 A.2d 791 (2000), for the proposition that "a continued legal relationship with her father helps rather than harms Rylyn." (AAG's brief, p. 25.) This argument has no merit.
The facts of In re Alissa N. can be summarized as follows. The respondent gave birth to Alissa when she was eighteen. Alissa was born with a myriad of physical problems, Down Syndrome, Eisenmenger Syndrome and a host of other serious medical conditions. The respondent's mother, the petitioner, took over the day-to-day care of Alissa because the respondent was overwhelmed by the care required by her child. This situation continued for about ten years. "During most of that period, the three [petitioner, respondent, and Alissa] lived in the same apartment. The respondent participated in Alissa's care only tangentially, more as an older sister might, rather than a mother. She would watch Alissa from time to time, but did not contribute to daily care." In re Alissa N., supra, 56 Conn.App. 206. The petitioner moved to terminate the respondent's parental rights. The termination was denied by the trial court. The Appellate Court affirmed the trial court's decision.
In this matter, the AAG quotes extensively from In re Alissa N., arguing that the reasoning in that case applies in this case as well. The argument advanced is as follows: "Rylyn, whose future is as uncertain as Alissa's, can benefit from the concern of as many people as possible." (AAG's brief, p. 26.) Concern is a prevalent concept in the AAG's brief, and in In re Alissa N. "[T]here is . . . no question that [the respondent] did not exhibit the concern which would ordinarily be exhibited by a parent, but she did exhibit some concern. As the court has noted, her involvement is more akin to an acquaintance or an older sibling. Alissa does not benefit from being totally isolated from all those family members previously connected to her." (Emphasis added.) In re Alissa N., supra, 56 Conn.App. 211. Here, Christopher F. has not shown some concern; he has shown no concern. He has never been "connected" to Rylyn nor does he have any involvement with her. As stated by Shannon R. in her testimony, Christopher F. "does not care."
The AAG argues that in the future a cure based upon genetics could be found and that if the court terminated Christopher F.'s parental rights it could be tragic for Rylyn.
In support of this argument, the AAG cites Shannon R.'s testimony in which she testified that Rylyn's blood was drawn for research at a hospital in Boston in order to assist researchers working on finding a cure for tuberous sclerosis by testing rats. She also cites Shannon R.'s testimony that she believes a gene from Christopher F. caused Rylyn to be born with tuberous sclerosis, a fact she made known to Christopher F. From this, the AAG posits that by terminating Christopher F.'s parental rights, Rylyn could not take advantage of a cure based upon genetic research. The court finds that this argument has a number of flaws and that it has no merit.
First, the AAG offered no testimony nor cited any articles, research papers or any other sources, that genetic research in this area could possibly lead to a cure. Second, if the "cure" existed today, would Christopher F. cooperate with medical procedure to help Rylyn? Given his track record, this seems unlikely. And even if Christopher F.'s parental rights were terminated, if he was so inclined, there is nothing that would not prevent him from cooperating with medical procedures to help Rylyn.
This court concludes that the reason that Shannon R. commenced this termination petition is for the reason she stated, her desire to be able to designate in her will her mother and father as guardians of Rylyn, and that reason is valid.
Shannon R.'s choice to appoint her mother and father as guardians is an excellent one. Shannon R.'s mother and father attend Rylyn's doctors' appointments with Shannon R. Rylyn has to have a pneumatic compression device strapped to her leg every night to pump lymphatic fluid out of her leg. Shannon R.'s mother and father are trained to do this. In response to questions from the court, Shannon R. testified that her parents have the ability to take care of Rylyn and are bonded with her. (Trial transcript, November 13, 2006, p. 36.) As part of her assessment, Krista St. John visited the home in which Shannon R., Shannon R.'s family and Rylyn resided. Ms. St. John noted in her assessment that Rylyn is bonded with her maternal relatives who lived in the house.
Kathleen Wells, a support enforcement officer was called by the AAG to testify. She testified as to the following. In May of 2006, a Canadian court established an order for Christopher F. to pay monthly support of $203.00 in Canadian currency, which equals about $152.87 a month in U.S. currency. All figures that follow will be in U.S. currency. That order had an effective date of April 1, 2004. As of June 2007, Christopher F. owed the state of Connecticut $4,433.23. Additionally, because Shannon R. did not go on state assistance until the end of January 2005, Christopher F. also owes her an additional $1,350.00. Because the probate court granted the termination of parental rights, the support orders are no longer in effect and therefore, the total that Christopher F. owes the state is $4,433.23. That is, unless, this court decides to deny the termination of parental rights petition. That is the crux of the objection by DSS. If this court grants the termination of parental right, DSS cannot seek reimbursement from Christopher F., except for the $4,433.23 arrearage he accumulated. If this court denies the termination of parental rights petition, then Christopher F. will have to reimburse the state for support given for Rylyn in the past and any given in the future.
Nothing in the legislative history of General Statutes § 45a-716(b)(5) indicates that the reason for the legislation was that if financial repayment to the state for child support was involved, then a termination of parental rights would not be granted. Rather, the legislation codifies In re Jessica M.'s ruling concerning standing by automatically making the Attorney General a party. The statute does not change the analysis established by In re Bruce R. and In re Jessica M., which state that a court should determine how a termination of parental rights petition will affect the financial situation vis-a-vis the best interest of the child.
In In Re Jessica M., the petitioner was paying $242.00 per week to the state in current support. The children were receiving $124.00 per week in the form of state assistance. The petitioner sought to terminate her parental rights. If her rights were terminated, the actual amount of cash the children would receive would be reduced by $118.00 per week, $242.00 minus the $124.00 to reimburse the state, a forty-nine percent reduction. In this case, although Shannon R. was never asked directly, it appears from the testimony of Ms. Wells that Shannon R. receives $153.00 per month from the state in child support. The order from the Canadian court requires Christopher F. to reimburse the state for this amount. Christopher F. does not pay anything to Shannon R. above what the state gives her. Therefore, if his parental rights were terminated, Rylyn would not receive less money, as the children in In re Jessica M. would have. All that would be affected would be the ability of the state to seek reimbursement from Christopher F.
If Christopher F. were to suddenly and miraculously decide to pay support directly to Shannon R., over and above what she receives from the state, then the arguments of DSS would be cogent. Christopher F., however, has paid nothing. The Canadian officials have initiated a suspension of Christopher F.'s driver's license. Even this has not resulted in any payments. This is perhaps because the Canadian officials cannot find Christopher F.'s source of income, if any. According to DSS's witness, Ms. Wells, the Canadian authorities have not been able to find Christopher F.'s assets and, based on her almost twenty years of experience as a support enforcement officer, the chance of collecting anything from Christopher F. is fifty-fifty. (Trial transcript, November 16, 2006, p. 42.) The AAG argues in her brief that "[Rylyn] needs her father's financial help." (AAG's brief, p. 8.) She may need his help, but considering the fact that Christopher F. has never given any direct financial support to Rylyn and has not honored the Canadian authorities' support order requiring him to pay, the idea that Christopher F. would pay support above that which the state pays is implausible.
What DSS is seeking from Christopher F. is reimbursement for funds already given to Shannon R., and if the petition is denied, reimbursement for future payments. The chances of this happening are minuscule. The chance of Christopher F. paying above what he owes the state is less than minuscule. These arguments in favor of not terminating Christopher F.'s parental rights must be balanced against the consequences of termination as it affects Rylyn's best interest.
Rylyn, to quote her physician, is a "very medically complicated patient." (Petitioner's Exhibit 1, p. 2.) The full scope of Rylyn's medical conditions and other related issues were described by her mother during the November 13, 2007, hearing on pages eleven through thirteen and are reiterated below.
Rylyn has been diagnosed with tuberous sclerosis. According to the National Institute of Neurological Disorders and Strokes "[t]uberous sclerosis (TSC) is a rare genetic disease that causes benign tumors to grow in the brain and on other vital organs such as the kidneys, heart, eyes, lungs, and skin. It commonly affects the central nervous system. In addition to the benign tumors that frequently occur in TSC, other common symptoms include seizures, mental retardation, behavior problems, and skin abnormalities." National Institute of Neurological Disorders and Stroke, located at http://www.ninds.nih.gov/disorders/ tuberous_sclerosis/detail_tuberous_sclerosis.htm (Last visited April 23, 2008). Rylyn has three different types of tumors in her brain, multiple cysts on her kidneys, and multiple calcified tumors in her heart.
She has been diagnosed with congenital lymphadema. "Congenital lymphadema is condition present at birth in which excess fluid called lymph collects in tissues and causes swelling (edema) in them. Congenital lymphedema is due to a congenital malformation (that is, a birth defect) of the lymphatic system. Congenital lymphedema can be found associated with the Noonan and Turner syndromes and a number of forms of lymphedema are clearly due to genetic factors." Medicine Net.com, located at http://www.medterms.com/script/main/art.asp?articlekey=32834 (Last visited April 23, 2008). In Rylyn's case her left leg is double the size of her right leg.
Further, Rylyn has or has had the following problems: texture averson; anxiety attacks; twelve ear infections before her first birthday; pneumonia; persistent colds; she takes a number of medications; every night a pneumatic compression device has to be put on her left leg to pump out the fluid that has built up in her leg due to her congenital lymphedema; she is susceptible to illness; she is constantly at the doctor's office, where she freaks out; she cannot use silverware; and she is not toilet trained.
Rylyn's grandmother and grandfather are familiar with her conditions. Rylyn has bonded with them. In contrast, Krista St. John noted, "[Rylyn] has no relationship with her father." (Trial Transcript, November 16, 2007, p. 21.) In the event something happened to Shannon R. and she passed away, it would be appropriate that her mother and father became Rylyn's guardians, especially considering Rylyn's extensive medical conditions.
The concern that Shannon R. has as to who will be Rylyn's guardian(s) if she should die is a legitimate concern. Shannon R. testified that she told Christopher F. of Rylyn's medical conditions and he responded by saying that "he looked it [presumably one of Rylyn's conditions] up online and its not that big a deal. So he didn't think it was too serious." (Trial Transcript, November 13, 2006, p. 16. It is not logical to have Christopher F. in a position where he is to take care of Rylyn if Shannon R. dies. Christopher F. has never taken care of Rylyn on a day-to-day, nor has he showed that he wants to take care of her, or even learn how to take care of her. In addressing the issue of whether a parent had rehabilitated, the Supreme Court in In re Anthony H., 104 Conn.App. 744, 758, 936 A.2d 638, cert. denied, 285 Conn. 920 (2008), made the following observation which is applicable to Christopher F. in the context of this case: "[t]he respondent has not made the changes necessary in [his] lifestyle in a timely manner that would indicate that [he] would be a safe, responsible and nurturing parent for the [child]").
Based on all of the testimony and evidence presented at the hearing, Shannon R.'s decision to name her parents in her will as Rylyn's guardians is sensible and prudent. The possibility that Christopher F. will contribute to Rylyn's financial support over and above what the state provides in child support is improbable. The possibility that Christopher F. will suddenly become involved in Rylyn's life and be a position where he is ready, willing and able to take care of her is less than improbable.
It is therefore in Rylyn's best interest that Christopher F.'s parental rights be terminated.
The court hereby orders that the parental rights of Christopher F. are terminated.
CT Page 9778