Opinion
No. M08-CP06-010195-A
March 14, 2007
MEMORANDUM OF DECISION INTRODUCTION AND DCF ALLEGATIONS:
This is a coterminous neglect and termination of parental rights ("TPR") case.
Practice Book "Sec. 35a-3. Coterminous Petitions: When coterminous petitions are filed, the judicial authority first determines by a fair preponderance of the evidence whether the child is neglected, uncared for or dependent; if so, then the judicial authority determines whether statutory grounds exist to terminate parental rights by clear and convincing evidence; if so, then the judicial authority determines whether termination is in the best interest of the child by clear and convincing evidence. If the judicial authority determines that termination grounds do not exist or termination is not in the best interest of the child, then the judicial authority may consider by a fair preponderance of the evidence any of the dispositional alternatives available under the neglect, uncared for or dependent petition."
The neglect grounds alleged by the commissioner of the department of children and family services ("DCF"), the petitioner herein, in the March 9, 2006, petition it filed with the court are that Sarah was neglected because
(1) she was abandoned;
(2) she was denied proper care and attention, physically, educationally, emotionally or morally ("denied proper care");
(3) she was permitted to live under conditions, circumstances or associations injurious to well-being ("conditions injurious"); and (4) she had been abused and had a condition which was the result of maltreatment such as, but not limited to, malnutrition, sexual molestation or exploitation, deprivation of necessities, emotional maltreatment or cruel punishment ("physical abuse").
In support of its neglect allegations, DCF alleged that while under the mother's and her boyfriend's care and custody, Sarah was "physically abused . . ."; that the mother and her boyfriend "admitted to cocaine abuse and alcohol abuse . . ."; that the mother ". . . [was] addicted to prescription drugs . . ."; that the mother ". . . admitted to sexually abusing her daughter . . ."; that Sarah ". . . reported that she has been sexually abused by mother . . ." and the mother's boyfriend; that such boyfriend ". . . admitted to having sexual intercourse with mother while Sarah was in the same room and bed as them . . ."; that such boyfriend ". . . admitted to severe domestic violence in which Sarah trie[d] to intervene and then [was] assaulted due to intervening . . ."; and that "Sarah is a young child . . ."
In the termination of parental rights petition, pursuant to what is now General Statutes ("C.G.S.") § 17a-112(j), against the father DCF alleged statutory Grounds A and D, and initially against the mother DCF alleged Ground C:
On February 14, 2007, after the court had accepted and approved the consent of the mother to the termination of her parental rights, DCF orally amended its petition to allege the ground of consent, and to withdraw Ground C: ". . . If a petition indicates that either or both parents consent to the termination of their parental rights, or if at any time following the filing of a petition and before the entry of a decree, a parent consents to the termination of the parent's parental rights, each consenting parent shall acknowledge such consent on a form promulgated by the Office of the Chief Court Administrator evidencing that the parent has voluntarily and knowingly consented to the termination of such parental rights . . ." (C.G.S. § 17-112(a).)
"The Superior Court, upon hearing and notice as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence (1) that the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts . . . ,
(2) that termination is in the best interest of the child, and
(3) that:
(A) 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; . . .
(C) the child has been denied, by reason of an act or acts of parental commission or omission including, but not limited to, . . . severe physical abuse or a pattern of abuse, the care, guidance or control necessary for the child's physical, educational, moral or emotional well-being. Non-accidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights;
(D) 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 . . ."
In the summary of adjudicatory facts for termination of parental rights and neglect petition, with respect to Ground A, abandonment, DCF alleged that Sarah had been abandoned by her father ". . . in the sense that [he] failed to maintain a reasonable degree of interest, concern, or responsibility as to the welfare of [Sarah] . . ."; that on ". . . January 13, 2004, [the father] was sentenced and incarcerated at Richland Correctional Institution in Ohio for 2nd Degree Drug Trafficking, 5th Degree Possession of Drugs, and 4th Degree Drug Trafficking in Cuyahoga County and for 2nd Degree Burglary in Portage County." The father ". . . received a prison term of seven years and nine months, with a possible release date of June 25, 2011." DCF also alleged that the father "knowingly and voluntarily engaged in criminal behavior, which resulted in his incarceration." When such father was sentenced and incarcerated, Sarah was three years old.
With respect to Ground D, no parent-child relationship, DCF alleged, inter alia, that the father has had no contact with Sarah since at least January 13, 2004, and that Sarah had reported that she had seen such father "once in her life. Sarah stated that she does not remember her father's name or what he looks like, but [she] is aware that he is in jail. [The mother] reported that Sarah . . . had minimal contact with [the father] prior to him being incarcerated."
On July 25, 2006, a local police officer telephoned the DCF hotline and such officer stated that Sarah was being taken to the hospital "by ambulance due to bruises and disclosures of physical abuse by mother's boyfriend." (Exhibit 4, 2.) After examination by hospital personnel and Sarah's statements about sexual and physical abuse, on July 25, 2006, at 3:53 p.m., DCF invoked a ninety-six-hour hold on Sarah.
There are several statutory provisions dealing with mandated reporters and their duties, including, inter alia: (1) "(b) The following persons shall be mandated reporters: Any physician or surgeon licensed under the provisions of chapter 370, any resident physician or intern in any hospital in this state, whether or not so licensed, any registered nurse, licensed practical nurse, medical examiner, dentist, dental hygienist, psychologist, coach of intramural or interscholastic athletics, school teacher, school principal, school guidance counselor, school paraprofessional, school coach, social worker, police officer, juvenile or adult probation officer, juvenile or adult parole officer, member of the clergy, pharmacist, physical therapist, optometrist, chiropractor, podiatrist, mental health professional or physician assistant, any person who is a licensed or certified emergency medical services provider, any person who is a licensed or certified alcohol and drug counselor, any person who is a licensed marital and family therapist, any person who is a sexual assault counselor or a battered women's counselor as defined in section 52-146k, any person who is a licensed professional counselor, any person paid to care for a child in any public or private facility, child day care center, group day care home or family day care home licensed by the state, any employee of the Department of Children and Families, any employee of the Department of Public Health who is responsible for the licensing of child day care centers, group day care homes, family day care homes or youth camps, the Child Advocate and any employee of the Office of Child Advocate." (C.G.S. § 17a-101.)
(2) "(a) An oral report shall be made by a mandated reporter as soon as practicable but not later than twelve hours after the mandated reporter has reasonable cause to suspect or believe that a child has been abused or neglected or placed in imminent risk of serious harm, by telephone or in person to the Commissioner of Children and Families or a law enforcement agency. If a law enforcement agency receives an oral report, it shall immediately notify the Commissioner of Children and Families." (C.G.S. § 17a-101b.)
(3) "Any mandated reporter, as defined in section 17a-101, who in the ordinary course of such person's employment or profession has reasonable cause to suspect or believe that any child under the age of eighteen years (1) has been abused or neglected, as defined in section 46b-120, (2) has had nonaccidental physical injury, or injury which is at variance wit the history given of such injury, inflicted upon such child, or (3) is placed at imminent risk of serious harm, shall report or cause a report to be made in accordance wit the provisions of sections 17a-101b to 17a-101d, inclusive . . ." (C.G.S. § 17a-101a.)
C.G.S. § 17a-101g provides in relevant part: ". . . (e) If the Commissioner of Children and Families, or the commissioner's designee, has probable cause to believe that the child or any other child in the household is in imminent risk of physical harm from the child's surroundings and that immediate removal from such surroundings is necessary to ensure the child's safety, the commissioner, or the commissioner's designee, shall authorize any employee of the department or any law enforcement officer to remove the child and any other child similarly situated from such surroundings without the consent of the child's parent or guardian. The commissioner shall record in writing the reasons for such removal and include such record with the report of the investigation conducted under subsection (b) of this section.
"(f) The removal of a child pursuant to subsection (e) of this section shall not exceed ninety-six hours. During the period of such removal, the commissioner, or the commissioner's designee, shall provide the child with all necessary care, including medical care, which may include an examination by a physician or mental health professional with or without the consent of the child's parents, guardian or other person responsible for the child's care, provided reasonable attempts have been made to obtain consent of the child's parents or guardian or other person responsible for the care of such child. During the course of a medical examination, a physician may perform diagnostic tests and procedures necessary for the detection of child abuse or neglect. If the child is not returned home within such ninety-six-hour period, with or without protective services, the department shall proceed in accordance with section 46b-129."
On July 28, 2006, DCF filed coterminous petitions to adjudicate Sarah neglected and to terminate the parents' rights. Id. DCF also requested and obtained an order of temporary custody. Id.
C.G.S. § 46b-129(b) provides in part that "[i]f it appears . . . that there is reasonable cause to believe that (1) the child . . . is in immediate physical danger from the child's . . . surroundings, and (2) that as a result of said conditions, the child's . . . safety is endangered and immediate removal of such surroundings is necessary to ensure the child's . . . safety, the court shall . . . (B) issue an order ex parte vesting in some suitable agency or person the child's . . . temporary care or custody . . . "
Sections 17a-101g and 46b-129 contain different language establishing a basis for a ninety-six-hour hold and the issuance of ex parte order of temporary custody. The Supreme Court has determined that the differing language reflects "a distinction without a difference." Teresa T. v. Ragaglia, 272 Conn. 734, 749 n. 9, 865 A.2d 428 (2005):
"The reasonable cause determination in § 46b-129(b) requires a finding that the child is `suffering from serious physical illness or serious physical injury or is in immediate physical danger,' whereas the probable cause determination in § 17a-101g(c) requires a finding that the child is `in imminent risk of physical harm.' The word `imminent' is defined as `[n]ear at hand,' `impending' and `on the point of happening . . . Something which is threatening to happen at once, something close at hand, something to happen upon the instant . . .' Black's Law Dictionary, supra. The word `immediate' is defined as `[p]resent; at once; without delay . . . [T]he word . . . denotes that action is or must be taken either instantly or without any considerable loss of time.' Id. In our view, this is a distinction without a difference . . ."
FACTS:
1. Prior to DCF knowledge of the family beginning on July 25, 2006, Sarah was repeatedly sexually and physically abused. (Exhibits 4, 7, 8, 10, 11, 12.)
2. The mother claimed that she was the perpetrator of such abuse. (Exhibit 11.)
3. Sarah stated that both the mother and her boyfriend were perpetrators of such abuse. (Exhibit 7.)
4. There was physical evidence of such abuse. (Exhibits 7, 8, 10, 12.)
5. The physical abuse was evident to neighbors of the mother and Sarah who made the July 25, 2006, report to the police.
6. On July 25, 2006, the DCF case worker made a visit to the home occupied by the mother, her boyfriend and Sarah. She reported: "The home was dirty in that there was clutter and dirt on the floors. Sarah's bed was a dirty mattress thrown on the floor with no sheets or blankets . . ." (Exhibit 4, 12.)
7. On July 27, 2006, the mother was arrested for the offenses of three counts of sexual assault in the first degree, one count of sexual assault in the second degree, and one count of risk of injury. (Exhibit 4, 3.) The mother's bail, which she did not post, was five hundred thousand dollars. Id.
8. On February 9, 2007, the mother pled guilty, under the Alford doctrine, to the offenses of assault in the second degree, risk of injury to a minor (sexual contact) and sexual assault in the fourth degree. (Exhibit 16, 1.) Among the ancillary orders, the mother was ordered not to have direct or indirect contact with Sarah in any manner. Id. The mother is incarcerated.
9. On January 13, 2004, the father was sentenced by the court and incarcerated at Richland Correctional Institution in Ohio for second degree drug trafficking, fifth degree possession of drugs, fourth degree drug trafficking in Cuyahoga County and for second degree burglary in Portage County. (Exhibit 1, 3-4; exhibit 4, 5, 9.)
10. The father has a possible release date of June 25, 2011. (Exhibit 4, 9.)
11. Sarah has been abandoned by her father in the sense that he has failed to maintain a reasonable degree of interest, concern or responsibility as to her welfare. Id.
12. The father has had no contact with Sarah since at least January 13, 2004. Id.
13. Sarah has no present positive memories of her father. Id.
14. Sarah has stated that she had seen such father "once in her life." Id.
15. Sarah has also stated that she does not remember her father's name or what he looks like, but she is aware that he is in jail. Id.
16. The mother reported that Sarah had minimal contact with the father prior to him being incarcerated. Id.
17. Because each parent was incarcerated during the pendency of this case, DCF was unable to provide services to each of them independent of any services available to them at each place of incarceration. See exhibit 4, 7-8.
18. Because of the immediate need for removal of Sarah for her physical and emotional protection, DCF was unable to provide any services to the mother prior to Sarah's removal.
19. On February 14, 2007, the mother submitted to the court, and the court accepted and approved, her written consent on the appropriate form. See fn 2, supra.
20. The facts found on pages 37-43, infra, are incorporated herein.
APPLICABLE LAW FOR NEGLECT: 1. Definition of neglect
A "child or youth may be found `neglected' who (A) has been abandoned, or (B) is being denied proper care and attention, physically, educationally, emotionally or morally, or (C) is being permitted to live under conditions, circumstances or associations injurious to the well-being of the child or youth, or (D) who has been abused . . ." C.G.S. § 46b-120(9).
" `Neglect . . . is the failure to exercise the care that the circumstances justly demand. It embraces willful as well as unintentional disregard of duty. It is not a term of fixed and measured meaning. It takes its context always from specific circumstances and its meaning varies as the context of surrounding circumstances changes.' (Internal quotation marks omitted.) The Honorable Thomas D. Gill, `The Legal Nature of Neglect' . . .," Randall v. Dunbar, No. CV 04 0525159 S, Superior Court, Judicial District of New Britain at New Britain (Murray, J., December 29, 2004) [38 Conn. L. Rptr. 468].
Neglect also has been generally defined as "the failure, whether intentional or not, of the person responsible for the child's care to provide and maintain adequate food, clothing, medical care, supervision and/or education." State of Connecticut DCF website, operational definitions. The following are set forth as "examples of physical neglect: 1. the failure to provide adequate food, shelter, and clothing appropriate to the climactic and environmental conditions[;] 2. the failure to provide, whether intentional or not, supervision or a reliable person(s) to provide child care[;] 3. leaving a child alone for an excessive period of time given the child's age and cognitive abilities[;] 4. holding the child responsible for the care of siblings or others where beyond the child's ability[;] 5. the person responsible for the child's care displays erratic or impaired behavior[;] 6. the person responsible for the child's care is unable to consistently perform the minimum of child-caring tasks[; and] 7. death." There are additional examples set forth in the DCF operational definitions of educational, emotional and moral neglect. See also In re Cameron W., F04-CP04-006236-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Wilson, J., December 28, 2006).
2. Neglect trial
Pursuant to C.G.S. § 46b-129, neglect trials are comprised of two parts, adjudication and disposition. In re Brianna C., 98 Conn.App. 797, 801 (2006). Conn. Practice Book § 35a-7 also provides:
(a) In the adjudicatory phase, the judicial authority is limited to evidence of events preceding the filing of the petition or the latest amendment . . .
(b) In the discretion of the judicial authority, evidence on adjudication and disposition may be heard in a non-bifurcated hearing, provided disposition may not be considered until the adjudicatory phase has concluded.
In this case, the court for the purpose of the adjudicatory phase has limited its review of the evidence to matters occurring on and before the July 28, 2006, filing of the coterminous petitions. In Brianna C., at 805, the Appellate Court explained this court's disposition options as follows.
"After an adjudication of neglect, a court may
CT Page 8189
(1) commit the child to the commissioner,
(2) vest guardianship in a third party or
(3) permit the parent to retain custody with or without protective supervision. General Statutes § 46b-129(j) . . .
"In determining the disposition portion of the neglect proceeding, the court must decide which of the various custody alternatives are in the best interest of the child. `To determine whether a custodial placement is in the best interest of the child, the court uses its broad discretion to choose a place that will foster the child's interest in sustained growth, development, well-being, and in the continuity and stability of [the child's] environment.' (Internal quotation marks omitted.) In re Haley B., 81 Conn.App. 62, 67, 838 A.2d 1006 (2004). At trial, the commissioner had the burden of proving by a fair preponderance of the evidence that it was in the child's best interest to be committed to the commissioner rather than to remain with the respondent. See id., 65."
C.G.S. § 46b-129(j) sets forth the court's authority to commit a child.
"General Statutes § 46b-129(j) provides in relevant part that `[u]pon finding and adjudging that any child or youth is . . . neglected . . . the court may commit such child . . . to the [commissioner] . . . Said commissioner may place any child or youth so committed to the commissioner in a suitable foster home or in the home of a person related by blood to such child or youth . . . As an alternative to commitment, the court may place the child or youth in the custody of the parent or guardian with protective supervision by the [commissioner] subject to conditions established by the court . . .' " In re Brianna C., supra, 98 Conn.App. at 798.
If commitment is ordered, the court also orders specific steps for reunification.
"We first note that the commitment in this case is not one of `permanency,' such as a judgment of termination of parental rights, but one that requires, pursuant to § 46b-129(j), the court to `order specific steps which the parent must take to facilitate the return of the child or youth to the custody of such parent.' " [fn 8.] In such footnote 8, the court noted that in Brianna C., ". . . the specific steps were many, including unannounced visits to the respondent and the child by department workers, attendance at parenting classes, individual and domestic counseling, and protective orders against the child's father to safeguard the child." In re Brianna C., supra, 98 Conn.App. at 805.
The court must also find that DCF made reasonable efforts to keep the children in the home, or that such efforts were not possible.
"The respondent also claims that the court abused its discretion when it found that the department had made reasonable efforts to keep the child with the respondent before seeking custody of the child. The last sentence of § 46b-129(j) provides in relevant part: `Upon the issuance of an order committing the child or youth to the [commissioner], or not later than sixty days after the issuance of such order, the court shall make a determination whether the [department] made reasonable efforts to keep the child or youth with his or her parents or guardian prior to the issuance of such order . . .' " In re Brianna C., supra, 98 Conn.App. at 806-07. The full relevant language in § 46b-129(j) is as follows: "Upon the issuance of an order committing the child or youth to the Commissioner of Children and Families, or not later than sixty days after the issuance of such order, the court shall make a determination whether the Department of Children and Families made reasonable efforts to keep the child or youth with his or her parents or guardian prior to the issuance of such order and, if such efforts were not made, whether such reasonable efforts were not possible, taking into consideration the child's or youth's best interests, including the child's or youth's health and safety." (Emphasis supplied.)
In connection with determining the disposition of a case, the court looks at the full picture of the family circumstances to determine each child's best interest, including each parent's parenting abilities.
"The court, however, makes an inquiry into the full history of the respondent's parenting abilities. In re Galen F., 54 Conn.App. 590, 594, 737 A.2d 499 (1999)." In re Jennifer W., 75 Conn.App. 485, 499, 816 A.2d 697 (2003), cert. den. 263 Conn. 917, 821 A.2d 770 (2003). In a dissolution of marriage context this requirement has been expressed as follows: " `Nevertheless our Supreme Court has also held that "the court must . . . take account of the parents' past behavior, since it must evaluate their present and future parenting ability and the consistency of their parenting for the purpose of determining which parent will better foster the [child's] growth, development and well-being.' " Yontef v. Yontef, 185 Conn. 275, 283, 440 A.2d 899 (1981)." Gil v. Gil, 94 Conn.App. 306, 322, 892 A.2d 318 (2006).
APPLICABLE LAW FOR TERMINATION OF PARENTAL RIGHTS:
C.G.S. § 17a-93 provides: "As used in sections 17a-90 to 17a-124, inclusive, and 17a-152: . . . (e) `Termination of parental rights' means the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his parent or parents so that the child is free for adoption except it shall not affect the right of inheritance of such child or the religious affiliation of such child . . ."
C.G.S. § 45a-707(8) also defines the termination of parental rights as above:
" `Termination of parental rights' means the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and the child's parent or parents so that the child is free for adoption except it shall not affect the right of inheritance of the child or the religious affiliation of the child . . ."
1. Prerequisite to any TPR determination, and the statutory grounds alleged by the petitioner DCF
The first two prerequisites to a determination that any TPR petition should be granted is that the court must find by clear and convincing evidence that:
(1) DCF "has made reasonable efforts to locate the parent and to reunify the child with the parent, unless the court finds in this proceeding that the parent is unwilling or unable to benefit from reunification efforts provided such finding is not required if the court has determined at a hearing pursuant to subsection (b) of section 17a-110 or section 17a-111b that such efforts are not appropriate, [and]
(2) that termination is in the best interest of the child . . ." (C.G.S. § 17a-112(j)(3).) The third requirement is that the court find, by clear and convincing evidence, that DCF has proved at least one of seven statutory grounds for termination. The grounds that are alleged in this case are "(A) 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; . . .
"The respondent also claims that the court improperly found that there was no ongoing parent-child relationship between the respondent and the child pursuant to § 17a-112(j)(3)(D). We decline to review that claim. `Because the statutory grounds necessary to grant a petition for termination of parental rights are expressed in the disjunctive, the court need find only one ground to grant the petition. Thus, we may affirm the court's decision if we find that it properly concluded that any one of the statutory circumstances existed.' In re Brea B., 75 Conn.App. 466, 473, 816 A.2d 707 (2003). Having concluded that the court properly found that there was clear and convincing evidence that the respondent failed to rehabilitate herself pursuant § 17a-112(j)(3)(B)(ii), we need not address the respondent's remaining claim." In re Shaun B., 97 Conn.App. 203, 214, 903 A.2d 246 (2006).
(C) the child has been denied, by reason of an act or acts of parental commission or omission including, but not limited to, sexual molestation or exploitation, severe physical abuse or a pattern of abuse, the care, guidance or control necessary for the child's physical, educational, moral or emotional well-being. Nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights;
(D) 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 . . ." Id.
Despite the order in C.G.S. § 17a-112(j) in which the statutory prerequisites to be proved are set forth, prior to any termination of parental rights, "[i]f the trial court determines that a statutory ground for termination exists, then it proceeds to the dispositional phase. During the dispositional phase, the trial court must determine whether termination is in the best interests of the child." In re Eden F., 250 Conn. 674, 689, 741 A.2d 873 (1999).
The Appellate Court has recently set forth this requirement as follows:] "After determining whether one of the statutory grounds for termination of parental rights under General Statutes § 17a-112(j) exists by clear and convincing evidence, a judge is required to evaluate whether severing the legal tie between parent and child is in the child's best interest." In re Davonta V., 98 Conn.App. 42, 43 (2006), cert. granted, 280 Conn. 947 (2006).
2. Explanation of Ground A, abandonment
" `Abandonment 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(j)(3)(A)] defines abandonment as the fail[ure] 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 a 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(j)(3)(A)] 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. The commonly understood general obligations of parenthood entail these minimum attributes: (1) express love and affection for the child; (2) express personal concern over the health, education and general well-being of the child; (3) the duty to supply the necessary food, clothing, and medical care; (4) the duty to provide an adequate domicile; and (5) the duty to furnish social and religious guidance. (Internal quotation marks omitted.) In re Deana E., 61 Conn.App. 185, 193, 763 A.2d 37(2000)." In re Jermaine S., 86 Conn.App. 819, 839-40, 863 A.2d 720, cert. denied, 273 Conn. 938, 875 A.2d 43 (2005).
3. Explanation of Ground C, acts of parental commission or omission
In In re Rachel J., 97 Conn.App. 748, 754-55 (2006), the Appellate Court discussed Ground C in the context of coterminous neglect and TPR petitions.
"The court issued a thorough and well-reasoned memorandum of decision on June 3, 2005, in which it found that there was ample evidence that R and N were neglected in that they were denied proper care and attention and permitted to live under conditions or associations injurious to their well-being. The court found that `the extreme injury inflicted on [R], and [the respondent's] subsequent failure to obtain medical treatment for many days amounted to a denial of proper care and attention of both children . . . [R] has been abused and received a serious physical injury that was inflicted by other than accidental means.' In addition, the court found that the respondent exposed R to sexual abuse. It stated: `Whether the abuse was perpetrated by [the respondent] or by [F] as [the department] originally believed, in either instance, both children were permitted to live in a home where sexual abuse occurred. [R's] significant behavioral problems demonstrate the serious effect the abuse has had on [R].' As to N, the court specifically found that `the domestic violence and physical and emotional abuse of [R] created an environment in the home such that [N] was denied proper care and attention physically, educationally, emotionally or morally and was permitted to live under conditions, circumstances or associations injurious to her well-being.' The court further found that `the fact that [the respondent] severely injured [R] after entering into [two service] agreements is further evidence that the children were neglected.'
"Finding that both children were neglected, the court turned its attention to the termination petitions. As to R, the only ground alleged in the termination petition was that the respondent, as a result of sexual molestation and severe physical abuse on her part, denied R the care, guidance or control necessary for her physical, educational, moral or emotional well-being under § 17a-112(j)(3)(C). The court found by clear and convincing evidence that R's injuries at the hands of the respondent constituted nonaccidental serious physical injuries to a child. It found further that the respondent's `failure to obtain medical treatment for [R] for days after the injury constituted an act of parental omission that . . . denied her the care, guidance and control necessary for her well-being. Moreover, [the respondent] only took [R] for treatment after learning that [the department worker] and [the] father were planning to see [R] the following day.' The court found that, in addition to serious physical injury, R suffered serious emotional injury and sexual abuse while living with the respondent. Accordingly, the court concluded that the respondent denied R, by reason of acts of parental commission and omission, the care, guidance or control necessary for her physical, educational, moral or emotional well-being."
In another recent decision, In re Nelmarie O., 97 Conn.App. 624, 626-27, 905 A.2d 706 (2006), the Appellate Court also affirmed a Ground C basis for the termination of parental rights upon the following summary of facts.
"The court found that [children] N and Y had seen the respondent and the father abuse [another child] E [who eventually died], and that the respondent had ordered N and Y to hit E with a sandal. There was no evidence, however, that the respondent and the father physically had abused N and Y. The court nonetheless found that the respondent and the father had failed to provide N and Y with `a safe home environment free of violence' and accordingly granted the petitions for neglect and termination of parental rights . . ."
The Appellate Court discussed the portion of Ground C that refers to a parent's failure to provide for the emotional well-being of a child.
"The respondent next claims that the court improperly found that she had failed to provide for the emotional well-being of N and Y pursuant to § 17a-112(j)(3)(C). In support of her claim, the respondent points out that she did not physically abuse N and Y and that she was not the biological mother or legal guardian of E. Section 17a-112(j), however, provides in relevant part that the court `may grant a petition [for termination of parental rights] if it finds by clear and convincing evidence . . . (3) that . . . (C) the child has been denied, by reason of an act or acts of parental commission or omission including, but not limited to . . . the care, guidance or control necessary for the child's physical, educational, moral or emotional well-being . . .' That statute does not require that the children who are the subjects of the termination petition be abused physically. See In re Sean H., 24 Conn.App. 135, 144, 586 A.2d 1171, cert. denied, 218 Conn. 904, 588 A.2d 1078 (1991). Furthermore, the respondent's relationship with E is not relevant to her claim. See id., 143-46. We conclude that the court properly found that the respondent had failed to provide for the emotional well-being of N and Y by abusing E in their presence and ordering them to participate in the abuse." In re Nelmarie O., supra, 97 Conn.App. at 628-29 (fn omitted).
4. Explanation of Ground D, no parent-child relationship
Judge Wollenberg recently has explained the requirements of Ground D, no parent-child relationship, to require a finding by this court that "no positive aspects of the relationship survive," e.g., that the child has no positive feelings toward the parent.
"This ground alleged by DCF requires proof, by clear and convincing evidence, 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.' This statutory definition, as it has been interpreted in case law, requires a finding that `no positive emotional aspects of the relationship survive.' In re Jessica M., 217 Conn. 459, 470, 586 A.2d 597 (1991). It is inherently ambiguous when applied to non-custodial parents who must maintain their relationship with their children through visitation. Id., 459; In re Valerie D., 223 Conn. 492, 531, 613 A.2d 748 (1992). Although the ultimate question is usually whether the child has no present memories or feelings for the natural parent, the existence of a loving relationship or a `psychological parent' relationship with one other than the natural parent does not, of itself, establish the no ongoing parent-child relationship ground for termination. In re Jessica M., supra, 473-75.
"Unlike the other nonconsensual grounds to terminate parental rights, the absence of a parent-child relationship is considered a `no fault' ground for termination. To establish this ground requires the trial court to make a two-pronged determination. First, there must be a determination that no parent-child relationship exists; and second, the court must look to the future and determine whether it would be detrimental to the child's best interest to allow time for such a relationship to develop. The absence of a parent-child relationship can be demonstrated in situations where a child has never known his or her parents so that no relationship ever developed between them, or where the child has lost that relationship so that despite its former existence, it has now been completely displaced. In re Juvenile Appeal (Anonymous), 177 Conn. 648, 670, 420 A.2d 875 (1979). Judicial interpretation has imposed a requirement that a child have `present memories or feelings' for the parent, and `at least some aspects of these memories and feelings are positive' to overcome this ground. In re Jessica M., supra, 217 Conn. 475; In re Juvenile Appeal (84-6), 2 Conn.App. 705, 709, 483 A.2d 1101, cert. denied, 195 Conn. 801 (1984). The existence of positive feelings usually depends on the viewpoint of the child. In re Rayna H., 13 Conn.App. 23, 35, 534 A.2d 897 (1987). As the Appellate Court recently noted, `the feelings of the child are of paramount importance.' In re Tabitha T., 51 Conn.App. 595, 602 (1999). `Feelings for the natural parent connotes feelings of a positive nature only.' Id." In re Jannessa C., Docket No. H12-CP04-009929-A, Superior Court, Judicial District of Hartford (Wollenberg, J., Aug. 2, 2006).
In In re Christian P., 98 Conn.App. 264, 268-70 (2006), decided after Jannessa C., the Appellate Court, citing Jessica M., set forth the "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 . . . In considering whether an ongoing parent-child relationship exists, the feelings of the child are of paramount importance . . . The ultimate question is whether the child has no present memories or feelings for the natural parent . . . Feelings for the natural parent connotes feelings of a positive nature only." (Citations omitted; internal quotation marks omitted.) In re Jonathon G., 63 Conn.App. 516, 525, 777 A.2d 695 (2001).
"In In re Jessica M., 217 Conn. 459, 586 A.2d 597 (1991), our Supreme Court defined an ongoing parent-child relationship as it applies to noncustodial parents. The court stated that termination of a noncustodial parent's rights requires a finding that `the child has no present memories or feelings for the natural parent.' (Internal quotation marks omitted.) Id., 468. When the child does have present memories or feelings, there must be a finding that `no positive emotional aspects of the relationship survive.' Id., 470. We recognize that `the evidence regarding the quality of [a parent's] relationship with [a] child must be reviewed in the light of the [parent's] limited access to visitation at the time of the petition.' (Internal quotation marks omitted.) In re Alexander C., 67 Conn.App. 417, 425, 787 A.2d 608 (2001), aff'd, 262 Conn. 308, 813 A.2d 87 (2003)."
5. The best interest of the child requirements
"After determining whether one of the statutory grounds for termination of parental rights under General Statutes § 17a-112(j) exists by clear and convincing evidence, a judge is required to evaluate whether severing the legal tie between parent and child is in the child's best interest. That task is among the most sensitive and difficult with which a judge is charged. Although a judge is guided by legal principles, the ultimate decision to terminate parental rights is intensely human. It is the judge in the courtroom who looks the witnesses in the eye, interprets their body language, listens to the inflections in their voices and otherwise assesses the subtleties that are not conveyed in the cold transcript." In re Davonta V., supra, 98 Conn.App. at 42, 43.
"A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition . . . In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights [under § 17a-112(j)] exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child." (Internal quotation marks omitted.) In re Brea B., 75 Conn.App. 466, 469-70, 816 A.2d 707 (2003).
"In the dispositional phase of a termination of parental rights hearing, `the emphasis appropriately shifts from the conduct of the parent to the best interest of the child.' In re Romance M., 229 Conn. 345, 356-57, 641 A.2d 378 (1994). During this dispositional phase, `the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent's parental rights is not in the best interest of the child. In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in § 17a-112[k].' In re Tabitha P., 39 Conn.App. 353, 361-62, 664 A.2d 1168 (1995). We note that those `seven factors serve simply as guidelines for the court and are not statutory prerequisites that need to be proven before termination can be ordered . . . There is no requirement that each factor be proven by clear and convincing evidence.' (Citation omitted.) In re Victoria B., 79 Conn.App. 245, 261, 829 A.2d 855 (2003)." In re Davonta V., supra, 98 Conn.App. at 46-47. (Footnote omitted.)
Although the focus in the dispositional phase "appropriately shifts from the conduct of the parent to the best interest of the child . . ." In re Romance M., supra, the sixth required finding in § 17a-112(k) is to consider ". . . the efforts the parent has made to adjust such parent's circumstances, conduct, or conditions to make it in the best interest of the child to return such child home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions, and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; . . ."
Also, although "the best interest of the child" is referred to as a dispositional focus, the concept also appears in one of the adjudicatory grounds, Ground D, no parent-child relationship.
"(D) 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 . . ." (C.G.S. § 17a-112(j)(3).)
Also, C.G.S. § 17a-112(q) provides that the "provisions of this section shall be liberally construed in the best interest of any child for whom a petition under this section has been filed." The seven adjudicatory grounds are part of "the provisions of this section," e.g., § 17a-112.
Effective October 1, 2005, in C.G.S. § 46b-56, the General Assembly established a set of factors that the court may consider in determining the best interest of a child when entering a custody order, some of which factors may be applicable in a TPR case. C.G.S. § 46b-56(c) is as follows.
"(c) In making or modifying any order as provided in subsections (a) and (b) of this section, the court shall consider the best interests of the child, and in doing so may consider, but shall not be limited to, one or more of the following factors.
(1) The temperament and developmental needs of the child;
(2) the capacity and the disposition of the parents to understand and meet the needs of the child;
(3) any relevant and material information obtained from the child, including the informed preferences of the child;
(4) the wishes of the child's parents as to custody;
(5) the past and current interaction and relationship of the child with each parent, the child's siblings and any other person who may significantly affect the best interests of the child;
(6) the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate, including compliance with any court orders;
(7) any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents' dispute;
(8) the ability of each parent to be actively involved in the life of the child;
(9) the child's adjustment to his or her home, school and community environments;
(10) the length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment, provided the court may consider favorably a parent who voluntarily leaves the child's family home pendente lite in order to alleviate stress in the household;
(11) the stability of the child's existing or proposed residences, or both;
(12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, shall not be determinative of custody unless the proposed custodial arrangement is not in the best interests of the child;
(13) the child's cultural background;
(14) the effect on the child of the actions of an abuser, if any domestic violence has occurred between the parents or between a parent and another individual or the child;
(15) whether the child or a sibling of the child has been abused or neglected, as defined respectively in section 46b-120; and
(16) whether the party satisfactorily completed participation in a parenting education program established pursuant to section 46b-69b. The court is not required to assign any weight to any of the factors that it considers."
This court's responsibility does not include where or with whom a child should live after a termination of parental rights, and thus this court should not enter orders concerning such matters as part of any TPR case disposition.
"In the dispositional phase of a termination proceeding, the court properly considers only whether the parent's parental rights should be terminated, not where or with whom a child should reside following termination." In re Sheena I., 63 Conn.App. 713, 726, 778 A.2d 997 (2001). However, after termination of parental rights the court generally appoints DCF as each child's statutory parent, see C.G.S. 17a-146: ". . . the Commissioner of Children and Families shall exercise and have all authority, rights, duties and functions granted to or imposed upon the Commissioner of Social Services in the general statutes in the area of adoption of children, including, but not limited to, authority . . . to act as a statutory parent, as defined in section 45a-707."
C.G.S. section 17a-93 provides: "As used in sections 17a-90 to 17a-124, inclusive, and 17a-152: . . . (f) `Statutory parent' means the Commissioner of Children and Families or that child-placing agency appointed by the court for the purpose of giving a minor child or minor children in adoption . . ."
C.G.S. section 45a-707(7) also provides: " `Statutory parent' means the Commissioner of Children and Families or the child-placing agency appointed by the court for the purpose of the adoption of a minor child or minor children . . ."
C.G.S. section 17a-112(m) provides: ". . . The Superior Court may appoint a statutory parent at any time after it has terminated parental rights if the petitioner so requests."
C.G.S. section 17a-112(o) provides: "In the case where termination of parental rights is granted, the guardian of the person or statutory parent shall report to the court within thirty days of the date judgment is entered on a case plan, as defined by the federal Adoption Assistance and Child Welfare Act of 1980, for the child which shall include measurable objectives and time schedules. At least every three months thereafter, such guardian or statutory parent shall make a report to the court on the progress made on implementation of the plan . . . If the court determines that the department has not made reasonable efforts to place a child in an adoptive placement or that reasonable efforts have not resulted in the placement of the child, the court may order the Department of Children and Families, within available appropriations, to contract with a child-placing agency to arrange for the adoption of the child. The department, as statutory parent, shall continue to provide care and services for the child while a child-placing agency is arranging for the adoption of the child."
In determining the best interest of a child, the court considers and applies, inter alia, the concepts of stability, closure and permanency.
"It is abundantly clear that the court gave careful consideration to the concepts of closure and permanency and did not simply use those terms as empty incantations." In re Davonta V., supra, 98 Conn.App. at 53. "In its decision, the court found by clear and convincing evidence that the children's best interests would be served by granting the petitions to terminate the respondent's parental rights. In support of that finding, the court noted that much of the children's short lives had been spent in the custody of the commissioner, and that the children needed stability and permanency in their lives. On the basis of those facts, we conclude that the court's determination that the respondent's parental rights should be terminated was not clearly erroneous." In re Alejandro L., supra, 91 Conn.App. at 262.
6. The standard of clear and convincing evidence
In In re Cheyenne A., 59 Conn.App. 151, 158-59, 756 A.2d 303 (2000), cert. denied, 254 Conn. 940 (2000), the Appellate Court explained the standard of proof by clear and convincing evidence.
"While it is true that evidence of the respondent's acts of omission was largely circumstantial, that evidence was sufficient. The law does not distinguish between direct and circumstantial evidence as far as probative force is concerned. State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984). The standard of clear and convincing proof used in this case denotes a degree of belief that lies between the belief that is required to find the truth or existence of the issuable fact in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution. Dacey v. Connecticut Bar Ass'n., 170 Conn. 520, 536-37, 368 A.2d 125 (1976). In a criminal case, the jury may draw reasonable, logical inferences from the facts proven as long as they do not resort to speculation and conjecture. State v. Festo, 181 Conn. 254, 259, 435 A.2d 38 (1980). In a case involving substantial circumstantial evidence, the cumulative impact of a multitude of facts, and not any one fact, may establish guilt. State v. Bember, 183 Conn. 394, 397, 439 A.2d 387 (1981). Insofar as circumstantial evidence can be and is routinely used to meet the higher standard of proof in a criminal prosecution, so can it be used in a case such as this where the applicable standard is that of clear and convincing proof." (Internal quotation marks omitted.) In re Juvenile Appeal (85-2), supra, 3 Conn.App. 192-93.
In Miller v. Commissioner of Corrections, 242 Conn. 745, 794-95 (1997), Justice Borden explained such standard.
"The clear and convincing standard of proof is substantially greater than the usual civil standard of a preponderance of the evidence, but less than the highest legal standard of proof beyond a reasonable doubt. It `is sustained if the evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.' (Emphasis added; internal quotation marks omitted.) State v. Bonello, 210 Conn. 51, 66, 554 A.2d 277, cert. denied, 490 U.S. 1082, 109 S.Ct. 2103, 104 L.Ed.2d 664 (1989).
"Although we have characterized this standard of proof as a `middle tier standard'; J. Frederick Scholes Agency v. Mitchell, 191 Conn. 353, 358, 464 A.2d 795 (1983); and as `an intermediate standard'; State v. Davis, supra, 229 Conn. 293; between the ordinary civil standard of a preponderance of the evidence, or more probably than not, and the criminal standard of proof beyond a reasonable doubt, this characterization does not mean that the clear and convincing standard is necessarily to be understood as lying equidistant between the two. Its emphasis on the high probability and the substantial greatness of the probability of the truth of the facts asserted indicates that it is a very demanding standard and should be understood as such . . . We have stated that the clear and convincing evidence standard `should operate as a weighty caution upon the minds of all judges, and it forbids relief whenever the evidence is loose, equivocal or contradictory.' (Internal quotation marks omitted.) Lopinto v. Haines, 185 Conn. 527, 539, 441 A.2d 151 (1981) . . ." (Footnotes omitted.)
7. The construction of C.G.S. section 17a-112
As set forth above, C.G.S. Section 17a-112(q) provides that the "provisions of this section shall be liberally construed in the best interest of any child for whom a petition under this section has been filed."
However, "[f]amily reunification is an important social objective. As our Supreme Court recently has reminded us: `[A]n important goal of the child protection statutes, in addition to protecting children from abuse and neglect, is to preserve family integrity by . . . teaching parents the skills they need to nurture and care for their children.' Teresa T. v. Ragaglia, 272 Conn. 734, 754, 865 A.2d 428 (2005)." In re Christina M., 90 Conn.App. 565, 570-71, 877 A.2d 941 (2005), affirmed, 280 Conn. 474 (2006). However, for the process to be successful, a parent has to be ready, willing and able to absorb and to benefit from the skills that are taught, and also to engage in and to benefit from services that enable him or her to overcome the matters and issues that are obstacles to his or her personal healthy functioning.
8. Weight to be given to testimony from court-appointed psychologists
In Davonta V., supra, 98 Conn.App. at 60 n. 3, Judge Schaller, dissenting, wrote.
" `The psychological testimony from professionals is rightly accorded great weight in termination proceedings. In re Nicolina T., 9 Conn.App. 598, 605, 520 A.2d 639, cert. denied, 203 Conn. 804, 525 A.2d 519 (1987).' (Internal quotation marks omitted.) In re Kezia M., 33 Conn.App. 12, 22, 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993)." (Emphasis added.)
In an earlier case, the Appellate Court also stated essentially the same proposition.
"Psychological testimony from professionals is appropriately accorded great weight in termination proceedings." In re Shyliesh H., 56 Conn.App. 167, 176, 743 A.2d 165 (1999). (Emphasis added.)
However, "[a]s in other areas where expert testimony is offered, a trial court is free to rely on whatever parts of an expert's opinion the court finds probative and helpful . . . In family cases in particular, it would be anomalous to require a trial court to assign particular weight to a report which is based on statements that the trial court may evaluate differently and on circumstances that may have changed." Yontef v. Yontef, 185 Conn. 275, 281-82, 440 A.2d 899 (1981). See also Ford v. Ford, 68 Conn.App. 173, 190 (2002): " `[A] trial court is free to rely on whatever parts of an expert's opinion the court finds probative and helpful.' Yontef v. Yontef, 185 Conn. 275, 281, 440 A.2d 899 (1981)."
9. The balancing of the legitimate interests of the parents, children and the state of Connecticut.
"The desire and right of a parent to maintain a familial relationship with a child cannot be separated from the desire and best interest of a child either to maintain or to abandon that relationship, or the interest of the state in safeguarding the welfare of children. The legitimate interests of parent, child and state require a balancing of the factors involved in those interests . . . In every case involving parental rights, a struggle exists between parents and the state to determine what is in the child's best interest, the child being the focus of the struggle . . ." (Citations omitted.) In re Shaquanna M., 61 Conn.App. 592, 598-99, 767 A.2d 155 (2001).
Former Chief Justice Peters has noted: "Cases involving the termination of parental rights are always difficult . . . Accordingly, the court sought the proper balance between the parents' constitutionally protected interest in the care, custody and control of their children, and the interest of the state, acting as parens patriae, to protect the children's health and safety." In re Christina M., supra, 90 Conn.App. at 566-67.
C.G.S. SECTION 17A-112(k) FINDINGS 1. The timeliness, nature and extent of services offered, provided and made available to the parent and each child by an agency to facilitate the reunion of each child with the parent.The mother was not offered services because she was incarcerated two days after DCF first became involved in the case.
The father was not offered services because he was incarcerated when DCF first became involved in the case.
Sarah has been provided with foster care services, substantial medical and dental treatment, psychological services and case management services.
2. Whether DCF has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980 as amended.Because of the horrific actions of the mother and her boyfriend, and because of the father's continuing incarceration, DCF was unable to make reasonable efforts to reunite the family.
CT Page 8206
3. The terms of an applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order(s). Because of the mother's actions toward Sarah, her incarceration, because she permitted and/or acquiesced in her boyfriend's actions toward Sarah, and also because of the father's continuing incarceration, there was no basis on which to issue specific steps toward reunification. 4. The feelings and emotional ties of each child with respect to their parents, any guardian of the person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties.Sarah is not bonded to the father in any parent-child way. She does not know her father. In July 2006, Sarah stated that she had seen her father on one occasion that she could recall. The father has been incarcerated since January 13, 2004, and could be incarcerated through 2011.
By court order in connection with her February 9, 2007, sentencing, the mother is prohibited from having any direct or indirect contact with Sarah in any manner whatsoever. Sarah has not had contact with her mother since July 25, 2006.
Sarah is strongly bonded to the foster parents and their children. From August 2006, the only family with whom she has lived is the foster family. Since she has lived with them, her condition, growth, development, educational and social attainment has materially improved.
5. The age of the child. CT Page 8207
Sarah is six years, nine months old. 6. The efforts each parent has made to adjust his or her circumstances, conduct or conditions to make it in the best interests of the children to return home in the foreseeable future.The father has remained incarcerated during the pendency of this case. In legal contemplation he has abandoned Sarah. He has no positive parent-child relationship with her, and she does not know him.
The mother has consented to the termination of her parental rights, and she has been ordered not to have any contact with Sarah.
7. The extent to which a parent has been prevented from maintaining a meaningful relationship with the children by the unreasonable act or conduct of the other parent of the children, or the unreasonable act of any other person or by the economic circumstances of the parent.There was no evidence presented that the mother has been prevented from maintaining a relationship with Sarah for any reasons other than the predictable consequences of her actions, omissions and choices.
The mother did not provide specific information concerning her current or past economic circumstances.
Through his own actions and behavior the father has been incarcerated since January 13, 2004. There was no evidence presented that the father has been prevented from maintaining a relationship with Sarah for any reasons other than the predictable consequences of his actions, omissions and choices.
The father did not provide specific information concerning his current or past economic circumstances.
ADJUDICATION OF NEGLECT AND COMMITMENT OF SARAH TO THE CARE, CUSTODY AND GUARDIANSHIP OF DCF
Sarah is hereby adjudicated as neglected, and is hereby committed to the care, custody and guardianship of DCF. The order of temporary custody is vacated.
The court finds that it is in Sarah's best interest to be committed to the care, custody and guardianship of DCF. The court further finds that it is not in Sarah's best interest for her to remain in the parental home (no such home currently exists). The court further finds, by clear and convincing evidence, that because of the July 25, 2006, emergency removal of Sarah, the July 27, 2006, incarceration of the mother, and the issues concerning the mother's and her boyfriend's behavior, actions and Sarah's safety, DCF was unable to make reasonable efforts to prevent her removal from the home. Under the circumstances of this case it is inappropriate and unnecessary for specific steps to be ordered. Reunification is not a viable option.
DCF HAS PROVED GROUNDS A AND D WITH RESPECT TO THE FATHER, AND THE MOTHER HAS CONSENTED TO THE TERMINATION OF HER PARENTAL RIGHTS
The court finds that DCF has alleged and proved, by clear and convincing evidence, that
(A) this court has jurisdiction over the matter and the parties;
(B) Sarah has been adjudicated neglected (see page 40, supra); (C) after filing its coterminous neglect and termination petitions, DCF did not have the opportunity to make any reasonable efforts to reunify Sarah (i) with the mother, because of her acts of commission and omission relating to Sarah, through offers of and provision of services, and (ii) with the father who was incarcerated and who had not had contact with Sarah in excess of three years prior to such filings;
(D) even if services could have been offered, given their circumstances, the mother and the father, would have been unable to benefit from any offers of and provision of services to the point where either of them could be considered to be a parental resource for reunification; and
(E) as set forth above, the father has not had contact with Sarah since at least January 13, 2004, when she was approximately three years seven months old, and with respect to the father, Sarah has been abandoned by him in the sense that he has failed to maintain a reasonable degree of interest, concern or responsibility as to her welfare, there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of the father having met on a day-to-day basis the physical, emotional, moral and educational needs of Sarah and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of Sarah.
Thus, as set forth above in this memorandum of decision, DCF, by clear and convincing evidence, has proved that Sarah has been abandoned by the father in the sense that such father has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of Sarah, there is no ongoing parent-child relationship between the father and Sarah and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of Sarah.
The mother has knowingly, voluntarily and intelligently consented to the termination of her parental rights.
THE BEST INTEREST OF SARAH
The court has considered the best interest of Sarah. The court has considered whether it is in the best interest of Sarah to be returned to the father, including whether the father reasonably could be expected and relied upon to provide the safe, secure, nurturing, stable, violence-free, and permanent environment idealized in the statutes and case law. The court has considered, inter alia, the evidence presented concerning Sarah's unhealthy situation and circumstances at the time of and prior to the filing of the coterminous neglect and TPR petitions; her current situation, needs and circumstances; her lack of contact with the father; the length of time she has been out of the father's care, custody and control; the length of time she has been in foster care; the reports of her positive growth, development and progress after being removed from the mother's and her boyfriend's care, custody and control at the hospital where she was taken on July 25, 2006; and the father's expectation of continued incarceration.
The court finds, by clear and convincing evidence, that it is in the best interest of Sarah, and that it is necessary for her growth, development, safety, security, stability, and permanency, that the rights of the mother and the father be terminated.
CONCLUSION AND ORDERS
Having considered the evidence and the statutory, Practice Book and case law requirements, the court finds, by clear and convincing evidence, as to the father, that DCF has proved Ground A, abandonment, and Ground D, no parent-child relationship. The mother has consented to the termination of her parental rights.
Having considered Sarah, her age, experiences, needs, developmental requirements, sense of time, her current lack of any positive relationship with the father, her lack of any opportunity for a positive relationship with the mother at any time in the reasonable future, her positive relationship with the foster parents and their family, her need for safety, security, stability and permanency, the mother's consent to the termination of her parental rights, the court order prohibiting contact between the mother and Sarah, and the general totality of circumstances, the court finds that it is in the best interest of Sarah to terminate the parental rights of the mother and the father.
Accordingly, it is hereby ORDERED that the parental rights of the mother and the father to Sarah are hereby terminated. The commissioner of the department of children and families is appointed as Sarah's statutory parent. The initial status report concerning Sarah shall be submitted, as required, within thirty days hereof. Quarterly reports and annual permanency plans shall be submitted as required in accordance with statutory requirements.
Judgment shall enter accordingly.