In re Selena O.

Full title: IN RE SELENA O

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

Date published: Jul 7, 2008

2008 Ct. Sup. 11684 (Conn. Super. Ct. 2008)

Opinion

No. H12-CP04-011822-B

July 7, 2008

MEMORANDUM OF DECISION

BEAR, J.

With respect to Selena O. ("Selena"), this is a termination of parental rights case. With respect to Dante N. ("Dante"), this is a consolidated neglect and termination of parental rights case.

The Selena O. case is on remand from the Appellate Court ". . . for further proceedings in accordance with law." In re Selena O., 104 Conn.App. 635, 649, 934 A.2d 860 (2007).

Both cases were heard¹ at the Child Protection Session of the Superior Court on May 21, May 22, May 27 and May 28, 2008. On each such day of the hearing the mother and the father of Selena, their attorneys, the attorney for each of the children, an assistant attorney general representing the commissioner of the department of children and families ("DCF") and a representative of DCF were present. The father of Dante, who is known to the mother only as "Chris," was not present.

1 Although these matters may sometimes be referred to as trials, see, e.g., General Statutes § 17a-112(j), in the Practice Book they are defined as hearings, see Practice Book § 26-1:

. . . (f) "Hearing" means an activity of the court on the record in the presence of a judicial authority and shall include (1) "Adjudicatory hearing": A court hearing to determine the validity of the facts alleged in a petition or information to establish thereby the judicial authority's jurisdiction to decide the matter which is the subject of the petition or information; . . . (3) "Dispositive hearing": The judicial authority's jurisdiction to adjudicate the matter which is the subject of the petition or information having been established, a court hearing in which the judicial authority, after considering the social study or predispositional study and the total circumstances of the child, orders whatever action is in the best interests of the child and, where applicable, the community. In the discretion of the judicial authority, evidence concerning adjudication and disposition may be presented in a single hearing.

Practice Book § 32a-2(a) provides that all such hearings are essentially civil proceedings but that they ". . . shall at all times be as informal as the requirements of due process and fairness permit . . ."

All hearings are essentially civil proceedings except where otherwise provided by statute. Testimony may be given in narrative form and the proceedings shall at all times be as informal as the requirements of due process and fairness permit.

The parties requested and were permitted to file post-hearing briefs on or before June 27, 2008, and except for the children's attorney who was excused they did so.

FACTS

The following facts have been proved by clear and convincing evidence:

1. DCF became involved with the father, the mother and her two sons in 1999 because of such parents' alleged substance abuse, domestic violence and child neglect problems.

2. Selena was born in February 2000. (January 2, 2008, social study for termination of parental rights, exhibit 31, 1.) Dante was born in August 2006. Id.

3. Selena has two older half-siblings, William M. ("William") who was born in 1990 and Brandon who was born in 1993. (April 4, 2005 social study for termination of parental rights, exhibit 30, 1.) The mother was married to the father of those two children in 1989. Id., 3. The mother separated from such husband in 1998 and their marriage was dissolved in 2000. Id. On January 27, 2006, the court approved and ordered a subsidized transfer of guardianship of each of such children to the paternal grandparents. (Exhibit 31, 1.)

4. The mother, who was born in 1969, began drinking alcohol at age 14 or 15. (Exhibit 30, 1, 3; exhibit 3, 5.) Her self-report of her first use of marijuana was at age 14; cocaine at age 16; and crack cocaine at age 21. (Exhibit 3, 5.) She completed the eleventh grade in high school. (Exhibit 30, 3.)

5. Selena's father was also born in 1969. Id., 1.

6. Approximately eleven days after Selena was born, the mother had a stroke and a heart attack that she believes ". . . were the results from the birth of her daughter and her high cholesterol." Id., 3. The mother reported to DCF that ". . . as a result of her stroke she is partially paralyzed on her left side." Id.

7. In December 2003, DCF received a report that from Selena's school as follows:

. . . the mother came to school to drop off her 3-year-old daughter, Selena, with [the mother having] a swollen black eye. The mother attributed this injury to a head butt by Selena. Selena told the school and DCF that her father . . . had hit her mother and gave her the black eye. The mother did acknowledge that [the father] is alcoholic and that they have a history of domestic violence. The two older children supported Selena's report with statements of their own. Brandon also reported he had been hit and thrown to the floor by [the father].

(Exhibit GG, 2.)

8. Selena's Head Start teacher, a mandated reporter, ² also reported to DCF the following:

2 See General Statutes 17a-101 and 17a-101a through 17a-101d.

. . . Selena is not a happy child, that she is aggressive and does not behave well in school and that [the father] is a binge drinker who stays in various hotels . . . The schools also reported that the mother is minimally cooperative and does not give her sons sufficient support. DCF developed and concluded two safety plans with [the mother] and [the father]that were both violated.

Id.

9. On January 26, 2004, DCF invoked a ninety-six hour administrative hold on Selena. (Exhibit 31, 2.)³ On January 30, 2004, DCF filed a neglect petition and sought an ex parte order of temporary custody that was granted by the court and subsequently sustained on February 6, 2004, after opportunity for a hearing. (Motion for judicial notice, 1.)

3 Dr. Mantell, the court-ordered psychological evaluator, described the events leading up to such administrative hold as follows:

On 01/22/04 DCF was informed that the mother was substance abusing and neglecting her children. She was observed with several injuries claiming these were the results of accidents. She spoke of a stroke that had left her partially paralyzed and which had effected her balance. She defended [the father] stating that he was not in the home at the times of her injuries. She also reported that [the father] was still drinking and gets violent when he drinks and that she drank with him. The service agreement that the parents signed precluded [the father] from staying in the mother's home with the children. On 01/26/04 the mother called DCF reporting that he was at her home and was ill. DCF invoked a 96-hour hold on behalf of the three children. At 2:30 that day DCF Social Workers Victor Flores and Lindy Melendez went to the mother's home to serve her and [the father] with the 96-hour hold. Both parents are described as upset, [the father] "furious," he yelling at the mother and blaming her for everything, the mother trying to calm him down. He was overheard telling her that she had told him that he could come back to the home and that if he had to leave so the children can return he would leave now. The mother then told him, "Don't leave me! Why are you going to leave me if the kids are not here? I need you!" The DCF Social Workers represent advising the mother that [the father] should leave for her safety to which she replied. "He's not going anywhere!" Still concerned for the mother's safety, the Social Workers informed the ________ Police Department asking that a police officer be sent to the home.

(Exhibit GG, 3-4.)

10. On April 29, 2004, Selena was adjudicated neglected and she was committed to the care, custody and guardianship of DCF. Id.

11. Selena lived in a safe home from January 26, 2004, through February 20, 2004. (Exhibit KK, 1.) Thereafter, Selena lived with the paternal grandparents from February 20, 2004, through May 19, 2004, ". . . with removal at the request of the grandparents because of Selena's behavioral problems." Id. Selena then lived at a non-relative foster home through March 3, 2005, ". . . with removal at the request of the foster mother because of Selena's behavioral problems." Id., 2. Selena was placed in another non-adoptive foster home through November 25, 2005, ". . . with removal to facilitate Selena's placement in a adoptive foster home . . ." Id. Selena was then placed in a pre-adoptive foster home that became a long-term foster care placement, at least through May 2006. Id. Selena is currently in a pre-adoptive foster home.

12. In December 2004, David M. Mantell, Ph.D., a psychologist and psychological examiner, conducted the first of the court-ordered evaluations he was asked to provide. (Exhibit GG.) At the time of such evaluation, the father was incarcerated. Id., 1. The mother described to Dr. Mantell her circumstances of alcohol and substance abuse. Id., 11-14. At the conclusion of such evaluation, Dr. Mantell reported that both parents had ". . . severe histories of substance dependence, Relational Disorder, criminal involvement, as well as Personality Disorder." Id., 31. He found that substance abuse had ". . . been a major disabling problem for the mother and [the father] . . ." Id., 32. Dr. Mantell also reported the following:

. . . The mother recognizes her history of Adult Relational Disorder and her severe substance abuse. She is asking for psychiatric and psychological as well as substance abuse support services. She is also aware of the estrangement that has entered her relationships with her children. She recognizes they have had abusive and neglectful exposures and that her parenting capacity has been impaired by her substance abuse and her Relational Disorder. She also recognizes that her children have lost faith in her likelihood of rehabilitation because of her continuing difficulties following their removal from her care . . .

[The father] has a very limited problem consciousness. His self-awareness and understanding are extremely superficial. He appears to be in denial about the more serious aspects of his Relational Disorder and his domestic violence history. He is a glib, avoidant, and superficial personal historian who claims memory impairment in order to avoid discussing his compromising biography.

Id., 31.⁴

4 In a January 14, 2005, addendum to his January 10, 2005, report Dr. Mantell stated that Selena would ". . . need to be shielded from the violence-laced casual conversations of her brothers and her father all of whom seem to have no appreciation for the negative impact this has on the child." (Exhibit HH, 2.)

Dr. Mantell reported that neither the parents nor the paternal grandparents were able "to develop and discharge appropriate childcare responsibility." He continued:

. . . Both parents are chronically impaired through substance abuse and Relational Disorder primarily. They also both present with antisocial personality characteristics. Both are deeply self-involved, immature, impulsive, hedonistic, and parentally irresponsible.

Dr. Mantell reported that each parent had a poor prognosis:

It is not anticipated that the children will return to the care and custody of the parents or the paternal grandparents in the foreseeable future. While the mother reports that she has now begun a sincere effort at rehabilitation, her prognosis is guarded, at best. [The father] is incarcerated and his post-incarceration prognosis is poor. Both parents can be referred for substance abuse and relational treatments. The data indicates that both have underlying Personality Disorders that are likely to be very resistant to treatment.

Id., 32.

13. On December 16, 2004, the court ordered that DCF did not have to make further efforts to reunify the mother with Selena. Id., 2.

14. On February 10, 2005, DCF filed its petition to terminate the mother's and the father's parental rights to Selena. Id. This is the TPR filing date for the purposes of the TPR hearing.

15. In a June 2, 2005, psychological report of clinical child assessments (Exhibit II), Dr. Mantell set forth William's description of the behavior of the mother and the father prior to the January 26, 2004, removal by DCF of the three children:

. . . He reports he stopped living with his mother because she was violent and there was drug use in the house. I asked him how he knew that she was violent and he answered that she used to hit him. He said she swore at him and smashed things, would punch him, come after him, and kick him. I asked if he remembered the last time this had happened and he said it was two days before they were taken away.

Asked to describe that day, he said his mother chased him into the basement and kicked him and punched him as he ran there. I asked what set that off and he answered that she told him to go upstairs and he wouldn't because he didn't do anything wrong and so she came after him. I asked William if he had any personal knowledge of his mother's drinking and drug use. He answered that she used to drink in front of them and one time she and her boyfriend had a fight. She smashed something, was stressed out, and then he saw her smoking pot. I asked if this was the only time he had seen his mother smoking pot and he answered that he found weed around the house but that was the only time he had seen her do it. Asked about the frequency of her drinking, he said it was about every day. He reports that his mother would drink Captain Morgan Spiced Rum and sometimes Budweiser. He had used the term "a lot" to refer to the frequency of her drinking and I asked him to explain that. He answered that she would finish the bottle. It would cause her to act silly but then she would become violent. He also knows that her boyfriend [the father] would drink too because her boyfriend drank in front of them, drinking Captain Morgan Spiced Rum, sometimes a half a bottle, and William would see this once in a while. The boyfriend would get silly but would not be violent. His name is [the father] and he lived with the family for seven years. William likes [the father] because [the father] would stick up for the kids when mom tried to hit them and would be nice to them and was fun to be around.

William reports that [the father] and his mother argued and hit each other. He would see and hear this and it happened a lot at the rate of every two days. [The father was] the one who was more frequently hurt. Sometimes she'd cut him and smash stuff on his head. One time it was a candle in a glass covering. Another time it was a phone. [The father] was cut on the arm. His mother would be hurt too and have bruises on her upper arm. He does not know how his mother got the bruises but he said his mother was on blood thinner and would bruise easily. I asked if someone had grabbed her and William said he didn't know. He reports that [the father] would sometimes hit her with his fist because his mother would hit [the father].

Asked how he felt at the times that this happened, William said he was angry, he would be angry at [the father], it would mess everything up, and he would be upset about how [Selena] would act. It would mess up the plans for the night. [Selena] would cry and scream and get scared. William reports that the arguing and hitting did not go on for seven years but rather for three . . .

(Exhibit II, 2.)

Brandon also reported about the domestic violence in the home. Id., 5-6. The fights between the mother and the father ". . . consisted of yelling, hitting, grabbing, choking, and stabbing." Id. He said that after the father left after a fight, the mother would hit, throw lamps and spit at him and William. Id. He said that Selena cried and screamed loudly during the fighting. Id., 5-6.

16. On July 19, 2005, the court ordered the cessation of visits between Selena and the mother. Id. Selena's first therapist, Ms. Jasmin, wrote as follows in support of such cessation:

. . . Over the past 2 months Selena has made great progress in treatment; presenting with little sadness and little to no difficulty at daycare and within her foster home. However, a significant regression in her behaviors (i.e. increase in tearfulness and crying at daycare and aggressiveness toward other children) has been noted following her most recent visit with her biological mother on 6/10/05.

During Selena's therapy session on 6/14/05, Selena reported that she would not like to see her mother again. In addition, she stated to this therapist that her mother scares her and that she doesn't like it when her mother touches her during the visits because she is afraid that her mother will get mad and yell and hit her.

. . .

Given Selena's fears of her mother, her increase in symptoms, desire to have visitations cease, and her mother's inappropriate behaviors, it is clinically strongly recommended that visitations not occur between Selena and her biological mother at this time.

(Exhibit C-1.)

17. The mother has not had custody of Selena since January 26, 2004, and she has not had any contact with Selena since July 19, 2005, a period of almost three years.

18. On December 13, 2005, the first termination of parental rights trial commenced before Judge Crawford. (Exhibit 31, 2.) It continued with respect to both parents on December 14, 2005, and January 17, 2006. Id. On March 15, 2006, DCF withdrew its TPR petition against the father. (Motion for judicial notice, 2.)

19. On March 21, 2006, with the agreement with the father, the court ordered that DCF did not have to make further efforts to reunify the father with Selena. Id. ⁵

5 The agreement of March 21, 2006, was set forth in a document entitled "Stipulated Agreement." Such document was signed by the father and his current attorney and it provided as follows:

1. The Department of Children and Families (hereinafter "DCF") will withdraw the termination of parental rights petition regarding Selena O. only insofar as it relates to the father . . . DCF reserves the right to file a termination of parental rights petition as it relates to the father . . . as set forth by state law.

2. DCF has filed a new permanency plan regarding Selena O., pursuant to General Statutes § 46b-129. The permanency plan regarding Selena O. recommends long-term foster care. As an element of implementing this plan, DCF has requested that the court make a finding, by clear and convincing evidence (as set forth in the social study in support of the permanency plan), that reunification efforts with the father . . . are no longer appropriate. [The father] agrees to this finding.

3. DCF will continue the current schedule of monthly visitation between the father . . . and the child . . .

4. The paternal grandparents of Selena O. . . . will withdraw their motion seeking guardianship of Selena O.

5. Regarding visitation between Selena O. and her paternal grandparents . . . DCF will provide twice-monthly visits. Absent an emergency, such as immediate physical danger, DCF will not reduce visitation to less than twice-monthly visits unless therapeutically recommended and the planned reduction is approved by the court. If an enhanced visitation schedule is desired by any party, including Selena O., DCF will agree to increase this visitation if it is in the best interest of the child. In making this determination, DCF will consult with appropriate therapeutic resources (such as a therapist for Selena). Court approval will not be required to implement an agreement among the parties to increase visitation.

6. DCF will continue the visitation agreement, as set forth in paragraph 5, regardless of any changes to the father's legal status as this status relates to the child, Selena O.

20. Also on March 21, 2006, the trial continued with respect to the mother and it concluded on May 30, 2006. (Exhibit 31, 2.)

21. On June 9, 2006, the mother was discharged from an Alcohol Drug Recovery Centers, Inc. ("ARDC") program for noncompliance with the program's guidelines. (Exhibit C.)

22. On July 5, 2006, the mother was admitted to RiverEast, ". . . a program that addresses mental health and substance abuse issues." (Exhibit D.)

23. On August 8, 2006, Dante was born and he and the mother tested positive for cocaine.

24. On September 27, 2006, Judge Crawford rendered an oral decision denying the termination of the mother's parental rights. Id., 2-3. Additionally, the court did not approve DCF's permanency plan of long-term foster care and ordered the filing of a permanency plan with a goal of reunification of Selena with the mother. Id., 3.

25. On September 7, 2006, DCF filed a neglect petition with respect to Dante and sought an ex parte order of temporary custody that was granted by the court and subsequently sustained on September 15, 2006, after opportunity for a hearing. (Motion for judicial notice, 2.) On September 15, 2006, specific steps were also ordered for the mother. Id.

26. In October 2006, DCF filed the court-ordered permanency plan containing the goal of reunification between Selena and the mother. (Exhibit 31, 3.)

27. On August 9, 2007, DCF discovered that such plan had not been reviewed by the court. Id. On August 10, 2007, DCF confirmed that the court had not scheduled a hearing on such plan. Id. DCF requested that a hearing be scheduled, and the court did schedule the hearing in October 2007.

28. During the trial Selena's current therapist, Ms. Tyrrell, testified that she began therapy with Selena in February 2007. She was informed that Selena was having difficulty maintaining herself in her the foster family with whom she was residing and in school. She showed signs of depression and withdrawal because of her removal from a prior foster home. She was afraid of loud noises and had incidents of tantrums that lasted for approximately twenty minutes. Selena was diagnosed with PTSD and major depressive disorder. Two letters from such therapist were admitted as full exhibits. (Exhibits C-2 and C-3.) The first of such letters, dated August 24, 2007, contains the following:

CT Page 11692

Very early in our therapeutic relationship. Selena began to verbalize clear details of witnessed domestic violence in her biological home. She reported multiple incidents of violence between her biological mother and father and expressed her fear during those times. She described trying to escape the violence by retreating to her brother's room and playing music loudly. It was at this time, Selena admitted to her current fear of loud voices and/or noises.

Over the last seven months, Selena has worked hard on controlling her behaviors and eliminating her screaming tantrums to loud voices. She has demonstrated significant progress. In addition, Selena has engaged in many conversations regarding her biological family. She has expressed no bond to her biological father and an adamant fear of being in the presence of her biological mother. Recent enforcement of court-ordered visitation with her biological father has caused Selena to, once again, revisit her past experiences and express tremendous fear in her therapy sessions.

It is my professional opinion that Selena is a victim of post-traumatic stress disorder through witnessed domestic violence. She has in the past demonstrated severe physical responses to her past traumas, which have hindered her daily life and routines. Her visits with her biological father are causing her to be re-traumatized and are causing a setback in her therapeutic progression.

(Exhibit C-2, 1-2.)

The second of such letters, dated September 17, 2007, contains the following:

This letter is to inform you of a worsening situation for my client Selena O[ ]. As you have been previously informed, Selena has strenuously expressed her desire not to participate in visitations with her biological father and mother. To date, her visits with her biological father continue. In discussing with Selena the judicial process and her need to be patient, her face turned an ashen color, her body quivered and she began to wring her hands. She was barely audible when she stated, "I don't think I can do it." I have given her therapeutic strategies to get through the waiting period but they have not been effective. During our last therapy session, Selena's foster mother reported Selena regressed back to screaming tantrums with her hands over her ears. Before biological visitations recently began, this behavior had diminished as her feeling of safety in her foster care placement increased.

It is my professional opinion Selena's therapeutic progress is rapidly receding. If you have any means of expediting the judicial process, it would greatly benefit this young child.

(Exhibit C-3, 1.)

These letters and the testimony of Ms. Tyrrell provided the basis for the court's October 2007, decision not to restore visitation to the mother and to terminate the father's visitation, since neither visitation was in Selena's best interest. See paragraph 31, infra.

Such therapist testified that Selena has made remarkable progress in that she has ended her tantrums, built a sense of safety, has multiple trusted adult relationships and has performed well in school. Selena had a strong withdrawal from wanting to visit with the father, and she became physically nervous, anxious and verbalized that she did not want to see him. The issues relating to the past mentioned to her by the father were too much for her to handle, and caused wringing of her hands, shaking of her body, paleness and crying. After her visits with the father ceased on October 18, 2007, Selena acknowledged her relief. She began to shift away from her prior anxiety and to focus on developing a bond with her current foster family including the foster father.

Ms. Tyrrell stated that Selena's visits with the mother had ceased before she began therapy with Selena. Selena was adamant that she did not want to visit with the mother. The therapist also stated that Selena "was extremely vocal" about not wanting to visit with the father and the paternal grandmother. She reported Selena's wishes not to visit with the paternal grandmother to the DCF worker who was reassigned on January 2, 2008. The therapist stated that Selena wants a "fresh start," and she has also asked such therapist if she can change her name. Selena has no strong sense of loss of her biological family, and she has described to such therapist in detail loud arguments and physical battles between the mother and the father, and having to retreat into another room and turn up the volume on a radio or television to drown out the noise and violence. She also was hit by and was afraid of her mother. Selena instead wants to be a permanent part of her current foster family.

29. On September 20, 2007, the Appellate Court heard oral argument on DCF's appeal. Id.

30. On October 15, 2007, for the father, and on October 17, 2007 for the mother, permanency plan hearings occurred on such October 2006, plan. Id. By motion joined in by DCF Selena sought to terminate her visitation with the father. The mother sought to reinstate her visitation.

31. On October 18, 2007, the court (Bear, J.) rendered a decision (of which it takes judicial notice) that included the following:

On September 27, 2006, after a trial, this court (Crawford, J.) denied a petition for the termination of the parental rights of the mother filed by the commissioner of the department of children and families ("DCF"). Such court also issued several orders, including the following:

. . . 4. DCF is no longer required to make reunification efforts with father.

5. DCF will continue monthly visitation with father.

6. DCF will file at CPS within 30 days a new permanency plan with the goal of reunification with mother. Such plan shall consider the following:

(a) The agreement concerning monthly visitation between father and child,

(b) resumption of visits with mother, at a minimum, equivalent to father's, and possibly return to the schedule at the time of the suspension. This should be considered with professional assistance . . .

On October 27, 2006, DCF filed a motion to review the permanency plan and to maintain commitment. The permanency plan goal set forth in such motion was reunification with the mother. DCF also alleged that it had made reasonable efforts to achieve such plan.

DCF appealed the decision of this court denying its petition. and such appeal is currently pending before the Appellate Court.

On October 15 and 17, 2007, this court heard

1. such DCF motion for review of such permanency plan;

2. the child's motion, joined in by DCF, to terminate visitation by the father;

3. the mother's motion for visitation; and

4. the father's motion for change of venue.

The court rules on such motions as follows:

1. As to the DCF motion for review of the permanency plan

DCF has complied with the order of this court set forth above. The court finds, by clear and convincing evidence, that DCF has made reasonable efforts to achieve such plan.

In accordance with its statutory obligation to do so, on or before November 2, 2007, DCF shall file in this court (CPS)(1) the annual motion to review its permanency plan (such plan to set forth the goal(s) DCF believes to be in the best interest of Selena) and (2) the required social study, and such motion shall be scheduled for hearing after the thirty-day period for objections to the plan has expired. See, generally, Practice Book § 35a-14.

2. As to Selena's motion, joined in by DCF, to terminate visitation by the father

Selena's therapist and the DCF worker currently assigned to the family convincingly explained why at this time it is not in Selena's best interest for the father to have visitation with her. For example, the therapist testified that Selena states "very clearly in her own words" that she feels unsafe and is not comfortable with the father, and that she remembers incidents of verbal and domestic abuse caused by the father. It is more probable than not that forcing Selena to continue to visit with the father would impede the progress she is making with the therapist on eliminating her sometimes disturbing negative behavior, including but not limited to severe temper tantrums lasting up to thirty minutes, which negative behavior she has made progress in controlling after months of work with such therapist, and after her failure to do so with prior therapists. Such motion to terminate visitation thus is granted.

3. As to the mother's motion for visitation

This court denies such motion. See General Statutes § 17a-10a.

4. As to the father's motion to change venue

Such motion is denied. DCF intends to file another petition to terminate the parental rights 11697 of the mother and the father. Pursuant to Practice Book § 33a-3, venue for such petition is in a regional court different from the regional court to which the father sought to have this case return for further proceedings during the pendency of the appeal. Additionally, during the pendency of an appeal, the original file remains at CPS. The court thus denies the father's motion to change venue.

(Footnotes omitted.)

With respect to the court's finding of no further reasonable efforts by DCF for the mother, this court determined that such finding remained in effect. The court set forth the following in footnote 2 of its decision:

On December 16, 2004, this court (Graziani, J.) found that further efforts by DCF to reunify the mother with Selena were no longer required. In its September 27, 2006, decision, this court (Crawford, J.) did not specifically address whether such finding was vacated, and whether DCF was again required to make such reasonable efforts, including but not limited to facilitating visitation by the mother. To date the mother has not moved to modify such December 16, 2004, finding. Notwithstanding any initial comments by the court during the hearing, after further review and consideration by the court of the prior decision, the court determines that the December 16, 2004, finding by Judge Graziani that further efforts by DCF to reunify the mother with Selena were no longer required remains in effect.

In re Selena O., 2007 Ct.Sup. 17391, No. T11-CP04-011822-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Bear, J., October 18, 2007.)

32. On December 4, 2007, the Appellate Court officially released its decision in In re Selena O., 104 Conn.App. 635 (2007). The Selena O. case was remanded by the Appellate Court ". . . for further proceedings in accordance with law." In re Selena O., supra, 104 Conn.App. at 649.

33. On December 5, 2007, DCF filed a petition to terminate the parents' rights to Selena, and DCF also filed a separate petition to terminate the rights of the mother and the father of Dante ("Chris" who is not Selena's father). (Motion for judicial notice, 2.)

34. On April 18, 2008, DCF moved to amend and/or clarify its petitions as follows:

A. the February 10, 2005, TPR petition concerning Selena remains in effect as to the mother. In that petition, the ground for termination is Ground B (i), failure to rehabilitate;

B. the December 5, 2007, TPR petition concerning Selena relating to the mother is withdrawn;

C. the Ground E allegations in the December 5, 2007, petition concerning Selena relating to the father are withdrawn. The remaining allegations against the father are based on Ground B(i);

D. with respect to the December TPR petition for Dante, the Ground B(i) and Ground E allegations relating to the mother are withdrawn, and a Ground B(ii) allegation is added; and

E. with respect to the unknown father of Dante, name him as "Chris Doe" with an unknown address in Maine, note the Ground D allegation on the petition and withdraw the Ground B(i) allegation.

35. On April 21, 2008, such motion was granted by Graziani, J.

36. On April 29, May 1 and May 5, 2008, Dr. Mantell conducted individual clinical evaluations of the mother and the father, and a relationship interaction between the mother and Dante. (Exhibit 25, 1.) Dr. Mantell had previously prepared written evaluations dated January 10, 2005, January 14, 2005, June 2, 2005, June 2, 2005 (update), May 23, 2006, and May 23, 2006 (addendum). Id., 2.

The mother reported to Dr. Mantell that Dante was "the product of a `one night stand'" and that she did not know anything about Dante's biological father. Id., 4.

Dr. Mantell also determined that each parent does not accept that Selena's rejection of them is her decision because of their past behavior. They blame DCF and Selena's therapists, and the mother claimed to Dr. Mantell that Selena had been"`brainwashed.' " Id., 2-4. However, the mother did acknowledge Selena's statement prior to the 2005 cessation of her visitation that the mother made her "nervous" (the mother's interpretation). Id., 4. The mother admitted to Dr. Mantell:

I am sure that I did. There was so much going on.

Id.

Both parents admitted to Dr. Mantell a history of alcohol and drug abuse. Id. The father admitted that his substance abuse involved alcohol, cocaine and marijuana. Id. The mother admitted to a history of crack cocaine and alcohol abuse and to use of marijuana. Id. The father self-reported that his alcohol sobriety date is November 22, 2005. Id., 5. The mother self-reported that her alcohol sobriety date is January 2007. Id.

Although the mother stated to Dr. Mantell that she ceased the use of alcohol and drugs in November 2005, until she lapsed in January 2007, when Dante was born in August 2006, his meconium tested positive for cocaine. Id. The mother submitted to a hair test that also confirmed the presence of cocaine. Id. As a result of such positive hair test, the mother was asked to leave the shelter in which she was residing, she became homeless and Dante was removed from her. Id.

The mother reported to Dr. Mantell her long-term unemployment, her multiple incarcerations

. . . between 5 and 8 times, the longest time for 5 months because of a violation of probation due to a dirty urine. The last incarceration was in November of 2005 for 30 days on a Breach of Peace for hitting a guy . . .

Id., 7.

As of May 2008, the mother was being treated by a psychiatrist and a therapist who she sees for medication, individual therapy, relapse prevention and group sessions. Id. She attends AA meetings. She has a case manager to help her with housing. Id., 8.

The mother admitted to Dr. Mantell that she is not ready to assume the care of Selena and Dante. Id.

On one of the tests taken by the mother, she self-quantified the physical abuse and domestic violence in her relationship with the father as follows:

. . . On the CTS-2, [the mother] reports that there was care and affection expressed in the relationship between her and [the father], but there was also a high degree of verbal and physical violence. She reports that between 11 and 20 times, she had a sprain, bruise, or a small cut because of a fight with her partner and that on 6 to 10 occasions, he had similar injuries. She reports that more than 20 times, they shoved each other. More than 20 times, he called her fat or ugly. On 3 to 5 times, she hit him with something that could hurt and 11-20 times, he hit her with something that could hurt. More than 20 times, she destroyed something that belonged to him. On 3 to 5 times, she went to the doctor because of a fight with him. Twice she choked him. 3 to 5 times, he choked her. They yelled at one another more than 20 times. She slammed him against a wall 3 to 5 times, and he slammed her against a wall 6 to 10 times. Twice, she needed to see a doctor because of a fight with him but she didn't. He never needed to see a doctor because of a fight with her and did not. 3 to 5 times, she beat him up and more than 20 times he beat her up. There was also a great deal of mutual slapping. Many times, they did things to spite one another. They would threaten to throw things at one another. 11 to 20 times, she still hurt physically the next day because of a fight with her partner and she says 3 to 5 times, he still felt physical pain the next day because of a fight with her. She reports that 6 to 10 times, she kicked him and he never kicked her.

Id., 9.

Dr. Mantell interviewed the father and established that the father had serious memory issues. Id., 15-17. He admitted to Dr. Mantell that his drinking "had been very bad at the end . . ." of his relationship with the mother in 2004. Id., 17.

In his testimony, Dr. Mantell stated that the father claimed not to remember important history such as his home life as a child and his work history. The father also was slow in completing the psychological questionnaires and forgot to return to Dr. Mantell's office to finish them. Dr. Mantell also testified that the father was vague about his work history.

Dr. Mantell testified that the father's history of substance abuse was a major disabling factor in the father's life. It was a part of the criminal proceedings against him; a major disabling factor in his relationship with the mother and with respect to his domestic violence problems; and it has negatively impacted his memory.

Dr. Mantell stated that in May 2008, the father was impaired by a poor memory for unpleasant events, and he was overwhelmed by thinking too far ahead. He did not like to talk about the negative factors in his life, the problems he has had and the mistakes he has made. Dr. Mantell testified that in May 2008, the father was "studiously vague" about the violence involving him, the mother and Selena, although in 2006 the father provided examples of such violence when Selena's older half-brothers discussed such violence with Dr. Mantell. He stated that in May 2008, the father talked about what was convenient. Dr. Mantell found that it was difficult to have a meaningful conversation with him about his personal and family history.

Dr. Mantell stated that the father wants to be a parent to Selena but he is unsure what went wrong in his quest to be a parent to her. Dr. Mantell further stated that the father is not in a position to provide a home for Selena and he is not ready to care for her.

Despite the statements of Selena and her therapists about the impact on her of the domestic violence between the mother and the father, and by the father and Selena's older half-brothers, the mother denied to Dr. Mantell that Selena ever saw such domestic violence. Id., 21. The mother described to Dr. Mantell the domestic violence and other events that occurred prior to the removal of Selena and her older half-siblings:

. . . She said they would fight and it was terrible. He would choke her and she would punch him. She said he was evil from the drinking and cocaine and "thought he was Scarface."

She said he acted cruel and was mean and vicious and had a nasty mouth and that the verbal abuse 11702 was worse than the physical abuse. She said he would be out all night and that he was stealing medicines from the pharmacy for which he worked and was taking liquid morphine, OxyContin, and then cocaine, would become constipated and then have diarrhea, but now he is in recovery and he is doing well.

Id.

The mother also admitted the following to Dr. Mantell concerning events that occurred after the three children were removed from her care and custody:

. . . She acknowledged that she continued to test positive for drugs in 2004 and had a domestic dispute late in 2005 that led to her incarceration at York CI. She explained that this occurred with her girlfriend's boyfriend. She admitted that she was unsuccessfully discharged from the Rushford Center's Dual Diagnosis Program in June of 2005 and in June of 2006 was unsuccessfully discharged from the Coventry House Alcohol and Drug Recovery Center. She admitted that she had verbal altercations with clients there and had been noncompliant with program rules. She admitted that in August of 200[6], she gave birth to [Dante], and that the child's meconium screening was positive for cocaine. She acknowledged that in September of 2006, she and Dante were discharged from the Tri-Town Shelter because she violated the shelter's substance abuse policy. She acknowledged that in December of that year she again tested positive for cocaine but explained that she was not using at that time and was doing 3 urines a week that were all negative. She acknowledged that during supervised visitation with Dante on January 10, 2007, she was high on alcohol and cocaine. She reported . . . that she had "had 2 lines and drank beer. It was a slip." She admitted to failing to attend a random urine screen on January 19, 2007 . . . She reports that her clean date is January 2007.

Id., 22.⁶

6 The mother may have under-reported to Dr. Mantell. Her urine test of January 10, 2007, reflects a positive level of "Cocaine (Metab.) Benzoylecgonine GC/MS Conf. 15000" and a positive alcohol level of 0.146. (Exhibit 7.)

Dr. Mantell testified that the mother was "far more cooperative" than the father in talking about her mistakes but her view and her memory were not consistent with the history given to him by the children, who were angry with the mother because of her behavior. The older half-brothers were "detailed" and "outspoken" about the mother's drunkenness, and her violence directed against them and Selena. Dr. Mantell said that they described it "in rather brutal terms." Selena contributed information about the "bad things" done by the mother. He testified that Selena was afraid of the mother because she slapped and hit her, and she threw a phone at the father but missed and it hit Selena. Dr. Mantell stated that he knew from the children, the mother, the paternal grandmother and the foster parents about how much violence there had been when Selena and her half-brothers lived with the parents, how much exposure they had to such physical violence, verbal and emotional abuse, how devastating it was to Selena and how upset she was when the parents fought. Dr. Mantell set forth the summary and conclusions he "reached with a high degree of psychological certainty." He noted each parent's admission that he and she were not ready to provide a home and to reassume parenting responsibility for Selena:

. . . Both parents presented in a pleasant and cooperative way for evaluation. Their outward demeanor was normal range. Neither parent presented with behavioral anomalies. Neither of them is admitting to current mental health problems of any significance. Both acknowledge histories of relationship disorder and substance abuse. Both assert sustained sobriety and freedom from criminal involvements. Neither of them is dating at this time. The father is employed part time and has a 1-room apartment. He reports that his visitation with Selena was stopped in October of 2007. He is hoping for its resumption and said that he is not in a position now to provide a home for her and hopes to be able to do so in about 6 months. In the interim, he would like the child to stay in her current foster home, which he has heard is a satisfactory placement if the safety and positive features of that placement are confirmed to be true. The father's memory for some of his personal history, in this case the most problematic aspects of it that bear on his parental position with Selena, is significantly impaired. He attributes this to the effects of his alcoholism.

The mother is reporting continued medical and psychiatric problems for which she is receiving medical and mental health care. Treatment records are not available for her. She was able to provide a substantial list of medications that she is now taking and also spoke about the names of psychiatric and psychological treatment providers. Financially, she is in a dependent position with financial supports provided by Federal, State, and other agencies. She does not feel that she is in a position to provide a home for her daughter at this time but hopes to be able to do so within the foreseeable future. She is receiving assistance m her search for a 2-bedroom apartment so that she has satisfactory housing both for Selena and for Dante.

Id., 23.

In such summary, Dr. Mantell highlighted each parent's lack of explanation for his and her slow process of rehabilitation despite claiming a period of sobriety:

Neither parent is able to offer a satisfactory explanation for their slow process of rehabilitation, despite claims of sustained sobriety, or why it is that now, after such a lengthy sobriety, that neither one of them feels able to provide a home for their children at the present time. Both parents spoke about physical problems, the mother's as residual impairments from her stroke and heart attack, the father saying as a result of whiplash from an automobile accident, but both of their reports about these issues were too vague to be understood as impairments that have significantly interfered with their broader rehabilitation and theft parental readiness to provide a home for Selena.

Id.

Dr. Mantell concluded that there was no ongoing relationship between Selena and either parent:

There is no ongoing relationship between Selena and either of her parents. She has not had visitation contact with her mother in 3 years or with her father since October of 2007. Her prior visitation contact with her father occurred mostly at the rate of once a month, according to the father's recollection.

Id., 24.

Dr. Mantell also stated that the parents were no longer in a romantic relationship with each other or with "significant other[s] at this time." Id.

He reported that Selena and Dante are cared for by foster parents, and Selena's psychological parents are her foster parents. Because of his young age, Dr. Mantell did not test Dante and he was not able to determine the "psychological parenthood of Dante. The evaluation format for Dante's evaluation did not provide access to that information." Id.

Dr. Mantell reported that while the parents acknowledged some problems in their "home life," the parents were in denial about or did not have a memory of some major events and issues referred to by Selena and others:

The father does not see any need for supportive services. The mother sees a need for continued supportive services. Both parents acknowledge that there were serious problems within their home that led to the removal of the children. The father is not able to attest to the exact circumstances of those problems because of impaired memory but he knows there were difficulties of a substantial kind, which he attributes to his drinking. He denies other kinds of substance abuse at the time that these problems arose and specifically denies the use of prescribed medications. The mother stares that he was seriously drug-dependent to alcohol, prescribed medications that he took illicitly, and other forms of substance abuse. She admits that she relapsed into serious substance abuse following the removal of her children and had another slip in January of 2007. The parents do not acknowledge direct abuse of the children. The father is not able to address this issue meaningfully because of his memory deficits. The mother claims that the children were not directly exposed to parental physical violence. She does not believe that there was any neglect of h[er] children either at the time of the DCF intervention and the removal of her children, William, Brandon, and Selena.

Id.

Neither parent is credible with respect to the issue of whether Selena was directly exposed to parental violence. Selena and her older half-brothers recalled and reported violence between the parents and violence by the mother directed at her. The father did not protect Selena from such violence. The violence that Selena witnessed and suffered is a material component of her diagnosis of post-traumatic stress disorder ("PTSD").

To the extent each parent claims alcohol and substance abuse as an explanation for his or her behavior, ⁷ such explanation does not provide a valid and acceptable excuse or justification for such behavior. See, e.g., In re Melody L. et al., 2007 Ct.Sup. 3342, Nos. FA 04 4000907 S, H12-CP02-008535-A, H12-CP02-008536-A, H12-CP02-008537-A, H12-CP02-008921-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Bear, J., February 23, 2007), fn 7.

7 Dr. Mantell found that substance abuse ". . . has been a major, chronic, incapacitating problem . . ." for both parents. Id., 25.

The mother's belief that the children were not neglected at the time of DCF intervention or at the time of their removal from her is not factually based.

While the issue of each parent's rehabilitation is for the court to decide within the parameters of Connecticut statutes and case law, Dr. Mantell set forth his expert opinion concerning each parent's limited rehabilitation as follows:

Both parents are claiming important areas of personal rehabilitation in a sense that they are both substance free and have sustained periods of sobriety. Both assert their readiness to re-involve themselves with Selena in a parental capacity. Both are hesitant to do so without external supports. Both indicate that their respective relationships with Selena were reduced and stopped through unnecessary DCF actions. Both consider themselves able to discharge a childcare responsibility on a progressive basis but not a complete ability to discharge a full childcare responsibility at this time. The mother feels that she would need therapeutic assistance to reacquaint herself with Selena and to assist Selena to reacquaint herself with the mother. The father would like his visitation restored and for it to grow in frequency and intensity. While both parents are reporting medical problems that are interfering with their li[ves], I have not had sufficient information from the parents about these problems nor access to medical documentation that would enable me to understand their nature. Some of the psychological assessment results for the mother indicate that she may be exaggerating her symptoms or malingering . . . for secondary gain. This issue is not resolved and cannot be on the basis of the available information. The mother is receiving strong psychotropic medications including Zoloft and Thorazine. She does not, however, report psychological symptoms and problems that match/explain the use of these medications. Both parents are found in this study to be making a slow rehabilitation, particularly in regard to their parenting ability. Both of them are found to underreport the personal problems that they exhibited during the time of their active parenting, which compromised their relationships with Selena. The mother specifically denies that she was actively drug using at the time that she produced positive drug tests in connection with her youngest child, Dante. Neither parent is found to be a satisfactory parenting resource for their children at this time.

Id., 24-25.

Dr. Mantell did not recommend visitation by either the father or the mother with Selena. Id., 25. He recommended that each parent receive counseling to help them understand why it is not in Selena's interest to be reunited with them. Id. With respect to Dante, Dr. Mantell opined that

. . . [t]he vagaries of the mother's status and the slowness of her parenting rehabilitation raise serious questions about her ability to rehabilitate on behalf of Dante for the purpose of assuming his primary care.

Id.

Based on the evaluation data, Dr. Mantell concluded that the mother is not able to achieve a sufficient degree of rehabilitation to provide adequate full-time parenting to Selena and Dante. Id. The mother has been unable to acknowledge, admit, accept and address the serious parenting issues that led to the removal of Selena and Selena's unwillingness to have any contact with her. Id. The mother also has not been able to acknowledge and admit her conduct that led to she and Dante testing positive for cocaine at his birth. Id.

Based on such evaluation data, Dr. Mantell concluded that the father is not able to achieve a sufficient degree of rehabilitation so that he could provide adequate parenting to Selena. Id. He found that the father seemed to be ". . . primarily preoccupied with relapse prevention." Id. Dr. Mantell also commented as follows:

It should be noted . . . that perhaps the most significant limitation on the rehabilitation potential of the parents in regard to Selena is Selena's own aversion to both parents and her desire not to have contact with them. It is concerning that both parents feel unable to provide a home for the child at this time. It is considered potentially seriously damaging to Selena to risk her relative stability and new attachments for the purpose of testing her ability to develop a relationship with her biological parents.

Id., 25-26.

39. The father currently is on probation through 2009.

40. Several witnesses, including DCF workers, a probation officer and counselors, testified about the mother's failure to rehabilitate after Selena and her half-siblings were removed from her in January 2004, including through at least January 2007, when she relapsed, the following:

A. failure to complete several programs;

CT Page 11708

B. continued chronic substance abuse;

C. untreated mental health issues;

D. behavioral issues;

E. lack of housing;

F. lack of employment;

G. incarceration during October and November 2005, as a result of a violent incident while she was living with friends;

H. being whereabouts unknown to DCF from November 2005, after she was released from incarceration, through January 2006;

I. continuing to engage in substance abuse after entering Coventry House in January 2006, being non-compliant with the rules and having difficulty interacting with others;

J. failing to inform the DCF worker about her pregnancy with Dante until her seventh month although the mother knew it was a high risk pregnancy;

K. failing to take three hair tests for which she was referred by the DCF worker between July and September 2006;

L. testing positive for cocaine at Dante's birth in August 2006, and Dante's meconium testing positive for cocaine;

M. being asked to leave a residential shelter in September 2006, one month after Dante's birth, because of her continued substance abuse;

N. testing positive for cocaine in December 2006; and

O. by the mother's admission, her "relapse" and use of cocaine in January 2007, confirmed by her appearance at a visitation with Dante intoxicated and under the influence of cocaine.

Additionally, after January 2007, through May 2007, the mother was in treatment for a while, then transient and/or living with friends, in a motel or in a shelter.

41. Another DCF worker became involved with the family on May 23, 2007. On July 1, 2007, the mother obtained housing at Soromundi Commons, but she was not allowed by the rules of the program for her to continue to reside there to have any children reside there with her. As of the end of the trial the mother continued to reside at Soromundi Commons. While residing there the mother has had access to AA and NA groups and to psychiatric, medication and therapy services. However, such worker testified that on August 24, 2007, and on November 1, 2007, the mother missed hair test appointments. The DCF worker who was assigned to the family in early January 2008, offered the mother three hair test appointments on February 12, February 21 and April 7, 2008, but the mother did not attend any of such appointments. The mother told such worker that "DCF is disgusting and she is not going to participate in a hair test." The mother testified and confirmed that she was disgusted with DCF. She stated that she let them know how she felt. Also, however, in her testimony she also acknowledged that there were incidents between her and the father that were detrimental to Selena's well being.

42. The father was incarcerated from June 2004, through July 2005. In March 2006, the father successfully completed an in patient substance abuse program at Lebanon Pines. He went to a half-way house recommended by Lebanon Pines for further treatment, but he violated rules and was discharged from such program. The father then resided with his parents and with friends. In February and March 2007, the father was incarcerated for a violation of his probation. The paternal grandmother refused to allow the DCF worker to speak with the father or to have the father receive DCF mail at her home. After his release from incarceration and through May 2007, the DCF worker whose contact with the family ended in May 2007, stated that the father visited with Selena for one hour each week as part of the paternal grandmother's visits at her home. Selena would not go into a room with the father unless the paternal grandmother was present. The father declined to release information to DCF concerning the terms of his probation.

After the new DCF worker became involved in May 2007, the father continued on probation through January 2, 2008, when such worker was reassigned. During such period, the father did not have any employment. The father did provide releases so the worker could have contact with Adult Probation. During such period, the father moved out of the paternal grandmother's home because the paternal grandfather maintained weapons in the home but the worker did not know where he went. The worker did not have direct contact with the father after the court terminated the father's visitation on October 18, 2007.

The current worker who became involved with the family in early January 2008, learned that the father resides in East Hartford in an efficiency apartment that she visited in April 2008. She determined that such apartment is not an appropriate residence for Selena.

43. Although DCF had been relieved by court order of having to provide reunification services to the father, Adult Probation continued to provide services to the father including in patient treatment at Lebanon Pines in 2005-2006 and domestic violence treatment twice from Wheeler Clinic. Although Adult Probation was providing services, some of the DCF workers assigned to the family also offered to assist the father with services.

44. The father testified that when he visited with Selena outside of the paternal grandmother's home the visits were "totally negative" compared to the visits at her home. He said that Selena did not want to speak to him and she was uncomfortable. However, when the father visited with Selena in the mother's home, Selena did not want to be alone with him.

45. The father admitted that when he was in the early stages of his recovery and while he was incarcerated, Selena could not be placed with him.

46. The father admitted that in March 2006, he agreed that DCF did not have to provide further reunification services to him.

47. As of May 1, 2008, the criminal record of the father, who is a convicted felon (exhibit 29, 2) includes:

A. on June 10, 2004, interfering with an emergency call for which the father was sentenced on January 18, 2005, to serve one year incarceration, execution of sentence suspended, three years probation;

B. On August 14, 2006, a probation violation for which the father was sentenced on January 22, 2007, to one year incarceration, execution suspended after serving thirty days (concurrent), two years probation;

C. on August 14, 2006, a second probation violation for which the father was sentenced on January 22, 2007, to one year incarceration, execution suspended after serving thirty days (concurrent), two years probation;

D. On July 21, 2004, reckless endangerment for which the father on November 16, 2004, was sentenced to one year incarceration;

E. On July 21, 2004, possession of narcotics, for which the father on November 16, 2004, was sentenced to five years incarceration, execution suspended after serving one year (concurrent), three years probation;

F. On August 14, 2006, a third probation violation for which the father on January 22, 2007, was sentenced on January 22, 2007, to four years incarceration, thirty days to serve (concurrent), two years probation;

G. On August 13, 1993, possession of narcotics and sale of hallucinogens/narcotics for which the father, on February 3, 1994, was sentenced to seven years incarceration, execution suspended after four years, five years probation;

H. On August 17, 1993, possession of narcotics for which the father, on February 3, 1994, was sentenced to four years incarceration;

I. On January 7, 1992, possession of narcotics, for which the father on June 18, 1992, was sentenced to six years incarceration, execution suspended after three years, three years probation;

J. On October 2, 1997, a probation violation for which the father on January 27, 1998, received an unspecified sentence.

(Exhibit 29, 2-4.)

48. As of May 1, 2008, the criminal record of the mother, who has a misdemeanor handgun disqualification (exhibit 28, 2) includes:

A. On October 25, 2005, breach of peace in the second degree, for which the mother on November 30, 2005, was sentenced to three months incarceration, execution suspended, conditional discharge;

B. On March 3, 2005, violation of a protective order, for which the mother on June 3, 2005, received a sentence of two years incarceration, execution suspended, two years probation;

C. On October 7, 1998, possession of drug paraphernalia, for which the mother on February 26, 1999, was granted an unconditional discharge;

D. On May 26, 1998, breach of peace, for which the mother on July 1, 1998, was sentenced to six months incarceration, execution suspended, eighteen months probation;

E. On January 15, 1997, assault in the third degree, for which the mother on October 21, 1997, was sentenced to thirty days incarceration, execution suspended, one year conditional discharge;

F. On February 4, 1997, operating under the influence for which the mother on October 24, 1997, received a sentence of six months incarceration, two days to serve, conditional discharge;

G. On October 23, 1997, the mother's probation was revoked and she was sentenced to five months incarceration.

49. Additional facts are set forth infra. See, e.g., 55-63. Unless otherwise specified, all facts set forth in this decision are found by clear and convincing evidence.

LAW APPLICABLE TO NEGLECT CASES 1. Definition of neglect

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

CT Page 11713

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

"`Neglect . . . is the failure to exercise the care that the circumstances justly demand. It embraces 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. The nature of a neglect proceeding

A neglect petition has been described as sui generis, and as "not a typical civil action." In re Allison G., 276 Conn. 146, 158, 883 A.2d 1226 (2005). The purpose of neglect and uncared for proceedings are to insure the child's safety and to secure a permanent placement for such child "as expeditiously as possible," whether such placement is with one or both parents, biological relatives, foster care or an institutional setting. CT Page 11714 Id. In In re Allison G., the primary issue was whether the trial court judge properly dismissed the neglect allegations of the DCF petition over the objection of DCF after the parents agreed to plead no contest to the uncared for allegations of such petition, and after the parents agreed to the relief sought by DCF, e.g., commitment of the child to the care, custody and guardianship of DCF. The Court set forth some "general observations":

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

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

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

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

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

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

3. Neglect standards

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

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

(b) In the discretion of the judicial authority, evidence on adjudication and disposition may be heard in a non-bifurcated hearing, provided disposition may not be considered until the adjudicatory phase has concluded.

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

After an adjudication of neglect, a court may

(1) commit the child to the commissioner,

(2) vest guardianship in a third party or

(3) permit the parent to retain custody with or

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

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

General Statutes § 46b-129(j) sets forth the court's authority to commit a child:

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

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

We first note that the commitment in this case is not one of "permanency," such as a judgment of termination of parental rights, but one that requires, pursuant to § 46b-129(j), the court to "order specific steps which the parent must take to facilitate the return of the child or youth to the custody of such parent." fn.8

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

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

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

Id.

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

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

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

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

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

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

. . . Nevertheless our Supreme Court has also held that "the court must . . . take account of the parents' past behavior, since it must evaluate their present and future parenting ability and the consistency of their parenting for the purpose of determining which parent will better foster the [child's] growth, development and well-being." Yontef v. Yontef, 185 Conn. 275, 283, 440 A.2d 899 (1981).

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

. . . The court, however, makes an inquiry into the full history of the respondent's parenting abilities. In re Galen F., 54 Conn.App. 590, 594, 737 A.2d 499 (1999).

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

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

In re Haley B., 81 Conn.App. 62, 65 (2004).⁸

8 But see Fish v. Fish, 285 Conn. 24, 81, 89-90 (2008) (although this is and was not an intact family with intact parent child relationships) with respect to custody awards to a third party, whether or not a relative:

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

. . .

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

. . .

In the present case, the trial court failed to apply the correct standard when it granted [paternal aunt's] motion to intervene and awarded her custody solely on the basis of the best interest of the child.

As set forth above, and pursuant to Practice Book § 32a-3(a), the standard of proof applied in a neglect, uncared for or dependency proceeding is a fair preponderance of the evidence. In In re Brianna C., supra, 98 Conn.App. at 801, the Appellate Court confirmed that "[t]he burden of proof is on the petitioner to show by a fair preponderance of the evidence that removal of a child from his or her home is warranted. CT Page 11720 In re Juvenile Appeal (83-CD), 189 Conn. 276, 293-95, 455 A.2d 1313 (1983)." Later in such decision, the Appellate Court reiterated:

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

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

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

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

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

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

As set forth above, the standard of proof in a neglect case is the "fair preponderance of the evidence." Such standard has been defined as follows:

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

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

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

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

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

5. Best interests of the child in a neglect case

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

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

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

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

A child's best interests include the child's interest in health and safety, in sustained growth, development, well-being, and in the continuity and stability of its environment. General Statutes § 46b-129(j); see page 34-35, supra. These factors are also considered and applied in termination of parental rights dispositions, In re Joseph L., 105 Conn.App. 515, 529 (2008), and in revocation of commitment cases, In re Cameron C., 103 Conn.App. 746, 759, 930 A.2d 826 (2007).

6. Given the history of the respondents' parenting, and their circumstances at the time of Dante's birth, DCF could reasonably have concluded and has proved by a fair preponderance of the evidence that Dante was neglected on September 7, 2006, when the neglect petition was filed with the court.

On September 7, 2006, DCF filed a neglect petition with respect to Dante and sought an ex parte order of temporary custody that was granted by the court and subsequently sustained on September 15, 2006, after opportunity for a hearing. Dante had been born with cocaine in his meconium.

Given the history of the mother's parenting, and her circumstances at the time of Dante's birth, DCF could reasonably have concluded and has proved by a preponderance of the evidence that on September 7, 2006, the date of the neglect petition, Dante was neglected on the basis of each ground alleged in the neglect petition, e.g., denied proper care and conditions injurious to the well being of Dante. In Re T.K., 105 Conn.App. 502, 939 A.2d 9 (2008); In re Michael D., 58 Conn.App. 119, 123-25, 752 A.2d 1135, cert. denied, 254 Conn. 911, 759 A.2d 505 (2000). (Within approximately a month after Dante's birth because of her substance abuse the mother's shelter residence was terminated.) On the date of his birth and on the date Dante was removed from the care of the mother, the last name of the father ("Chris") was unknown and his whereabouts were unknown. He had not had any custodial involvement with Dante.

Given the current circumstances of the mother and the continued lack of knowledge about the identity and location of the biological father, the disposition that will foster Dante's health and safety, his interest in sustained growth, development, well-being, in the continuity and stability of his environment, and his general best interest, is commitment to the care, custody and guardianship of DCF. Dante thus is committed to the care, custody and guardianship of DCF. It is not in his best interest presently to be returned to the care, custody or guardianship of either parent, the mother or the unknown father.

LAW GENERALLY APPLICABLE TO TERMINATION OF PARENTAL RIGHTS CASES

The law applicable to this case is generally set forth in such recent cases as In re Davonta V., 285 Conn. 483 (2008); In re Joseph L., 105 Conn.App. 515, 939 A.2d 16 (2008), cert. denied, 287 Conn. 902 (2008); In re Jessica M., 217 Conn. 459, 467-70, 586 A.2d 597 (1991); and In re Marcus S., 2008 Ct.Sup. 3329, No. H12-CP07-012714-B, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Bear, J., February 29, 2008).

GENERAL STATUTES § 17A-112(k) FINDINGS

The court has made findings earlier in this decision, some of which relate to the seven statutory factors applicable to the mother and the father. See pages 1-39, supra. In addition to those findings, the court makes the following findings applicable to the mother, the father, Selena and Dante:

1. The timeliness, nature and extent of services offered, provided and made available to the parent and each child by an agency to facilitate the reunion of each child with the parent.

A. Although on March 21, 2006, the father agreed that DCF no longer had to provide him with services, prior to and after such date services were offered to Selena's father including:

1. Genesis Center substance abuse evaluation;

2. Intercommunity Mental Health substance abuse treatment and anger management;

3. DCF supervised visitation;

4. Wheeler Clinic substance abuse treatment;

5. Lebanon Pines inpatient substance abuse treatment;

6. Clayton House inpatient substance abuse treatment;

7. services from or arranged by the Department of Adult Probation; and

8. DCF administrative and case management services.

On March 21, 2006, the father voluntarily agreed that DCF did not have to provide him with any additional services for reunification with Selena.

B. Although on December 16, 2004, the court determined that DCF did not have to provide further services to the mother for reunification with Selena, prior to and after such date, and after the birth of Dante, services were offered to the mother of Selena, some of which the mother utilized on multiple occasions, including:

1. Hockanum Valley Community Council for domestic violence and individual counseling;

2. Genesis Center;

3. Rushford inpatient and outpatient Services;

4. Hartford Hospital/Institute of Living outpatient program;

5. ADRC Outpatient and Inpatient Services for substance abuse treatment;

CT Page 11725

6. Coventry House Inpatient substance abuse treatment;

7. RiverEast Outpatient substance abuse treatment;

8. DCF transportation;

9. bus passes,

10. supervised visitation with Selena until terminated and with Dante;

11. various housing services including Soromundi Commons; and

12. DCF administrative and case management services.

On December 16, 2004, the court made a finding that further efforts towards reunification were no longer appropriate as to mother with regard to Selena.

C. The father of Dante:

Since the mother was unable or unwilling to identify the father of Dante, it was impossible for DCF to determine whether to offer services to him, and, if so, what services should have been offered.

D. Services were offered to the mother of Dante after his birth in August 2006, including:

1. hair toxicology tests;

2. urine screens;

3. Genesis Center;

4. Rushford Behavioral Health Services;

5. RiverEast;

6. supervised visitation;

7. transportation;

8. DCF administrative and case management services; and

9. extensive services in connection with the Soromundi Commons housing program.

E. Selena has been offered and has received the following services from or facilitated by DCF, inter alia:

1. medical and dental services plus an MDE;

2. reunification services;

3. visitation;

4. transportation;

5. foster care services;

6. evaluative, educational and therapeutic services; and

7. DCF administrative and case management services.

F. Dante has been offered and has received the following services from or facilitated by DCF, inter alia:

1. medical and dental services plus an MDE;

2. reunification services;

3. visitation;

4. transportation;

5. foster care services;

6. evaluative and educational services; and

7. DCF administrative 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.

DCF has made reasonable efforts to reunite Selena and Dante with their respective biological parents.

The reasonable efforts made and facilitated by DCF with respect to services for Selena and Dante were timely and adequate to address the issues that led to DCF involvement with each of them and to address the issues that continued or arose after such DCF involvement.

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

On September 15, 2006, the court ordered specific steps for the mother of Dante. (Exhibit 31, 14.) After such specific steps were ordered, the mother generally complied with visits scheduled for her with Dante. Id. The mother also complied with court-ordered evaluations. The mother did not comply with the no substance abuse requirement. On December 8, 2006, the mother tested positive for the use of cocaine after September 8, 2006. Id., 16. On January 10, 2007, the mother arrived for a visit with Dante under the influence of cocaine and alcohol. Id., 17. The mother did not attend several scheduled hair and urine tests, including those scheduled on January 19, February 7, April 26, 2007 and in October 2007. Id., 16, 18. On March 5, 2007, the mother was discharged from the Genesis Center after a positive hair toxicology screen. Id., 16.

After Dante was born, the mother failed to attend several substance abuse outpatient sessions at RiverEast, including those scheduled on October 6, October 9, October 10, October 11, October 12 and on October 13, 2006. Id., 16. When the mother did attend, she was argumentative and disruptive. Id.

The mother is residing at Soromundi Commons in an apartment where children are not allowed to reside. Id., 17. Prior to obtaining an apartment at Soromundi Commons in July 2007, the mother was transient. Id.

The court entered a default against Chris Doe on October 13, 2006, when he failed to appear at his initial hearing on the neglect petition. Id., 18. The father has not been identified and has had no contact with DCF. Under such circumstances, pursuant to General Statutes §§ 17a-111b and 17a-112(j) the court finds that court-ordered specific steps and reunification efforts by DCF were not required for Dante's father.

On December 16, 2004, and on March 21, 2006, respectively, the court held that DCF did not have to provide further reunification services to the mother and the father of Selena. However, after such dates, DCF continued to offer services to each parent. From December 2004, through at least January 2007, the mother had continuous, chronic, disabling substance abuse and mental health problems. During such period each parent at times was incarcerated.

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

Selena has made it very clear that she wants to live with and be adopted by her foster family. She does not want to have contact with her biological mother, her biological father or her paternal grandparents. See, e. g., exhibit 25, 13-14. There is no ongoing relationship between Selena and either of her parents. Id., 24. Selena's psychological parents are her foster parents. Id. Dante was observed by Dr. Mantell to be ". . . a healthy appearing, active, and well adjusted child who appears to be making satisfactory developmental progress." Id., 22. Dr. Mantell commented that the ". . . relatively good condition . . ." of Selena and Dante ". . . attests to good childcare . . ." by their respective foster parents. Id., 25.

5. The age of each child

Selena is eight years old.

Dante is approximately twenty-three 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.

Unfortunately, as set forth throughout this memorandum of decision and in the evidence, neither the mother nor the father has been able to adjust her or his circumstances, conduct or conditions to enable her or him to make it in the best interest of Selena to return to either of their homes in the foreseeable future. Selena has made it very clear that she does not want to have any contact with either parent. Dante has been in foster care with the same family continuously after the first month of his life.

Also, as set forth throughout this memorandum of decision and in the evidence, the mother has not been able to adjust her circumstances, conduct or conditions to enable her to make it in the best interest of Dante to return to her home in the foreseeable future. In her current residence, children are not permitted. The mother's focus is on her sobriety and her mental health issues. No information is known about the father of Dante other than his first name and that he may have lived in Maine.

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 either the mother or the father of Selena has been prevented from maintaining a relationship with Selena for any reasons other than her or his personal choice or the results of their past behavior in the presence of Selena.

Neither the father nor the mother provided specific information concerning his or her current or past economic circumstances.

There was no evidence presented that the mother of Dante has been prevented from maintaining a relationship with Dante for any reasons other than her personal choice or the results of her behavior. No information is known about the father of Dante other than his first name and that he may have lived in Maine.

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

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

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

CT Page 11730

(2) Selena previously was adjudicated neglected;

(3) prior to filing its termination petition, DCF made reasonable efforts to reunify the mother with Selena through offers of, provision or attempted provision of services to such mother and Selena, and such offers of services continued after such filing on February 10, 2005;

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

(5) on December 16, 2004, such DCF efforts to reunify the mother and Selena were determined by the court to be no longer required;

(6) because of the events, relationships, behavior and issues set forth in this decision, (i) after Selena was removed from the mother (and from the father who was living in such home) on January 26, 2004, (ii) after the April 29, 2004, neglect adjudication, (iii) prior to the filing of the February 10, 2005, TPR petition and (iv) thereafter through the last date of the hearing, the mother failed to achieve the degree of personal rehabilitation that:

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

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

(c) would encourage the belief, within a reasonable time in the future, considering Selena's age, past and current circumstances and needs, her extremely negative feelings about the mother, and the mother's chronic substance abuse and mental health issues, she could assume a position in Selena's life as a responsible parent providing an environment that was free of physical violence, free of emotional neglect of Selena, and that provided for and insured the health, safety and welfare of Selena; and thus

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

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

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

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

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

(2) Selena previously was adjudicated neglected;

(3) prior to filing its termination petition, DCF (and Adult Probation) made reasonable efforts to reunify the father with Selena through offers of, provision or attempted provision of services to such father and Selena, and such offers of services continued after such filing on December 5, 2007;

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

(5) on March 21, 2006, such DCF efforts to reunify the father and Selena, with the father's agreement, were determined by the court to be no longer required;

(6) because of the events, relationships, behavior and issues set forth in this decision, (i) after Selena was removed from the mother (and from the father who was living in such home) on January 26, 2004, (ii) after the April 29, 2004, neglect adjudication, (iii) prior to the filing of the December 5, 2007, TPR petition and (iv) thereafter through the last date of the hearing, the father failed to achieve the degree of personal rehabilitation that:

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

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

(c) would encourage the belief, within a reasonable time in the future, considering Selena's age, past and current circumstances and needs, and her negative feelings about the father, he could assume a position in Selena's life as a responsible parent providing an environment that was free of physical violence, free of emotional neglect of Selena, and that provided for and insured the health, safety and welfare of Selena; and thus

(7) the level of rehabilitation the father has achieved falls short of that which would encourage a belief that at some reasonable future date he can assume a responsible parental position in Selena's life.

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

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

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

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

(2) Dante previously was adjudicated neglected (see pages 53-54, supra, and General Statutes 17a-112(l));

(3) prior to filing its termination petition, DCF made reasonable efforts to reunify the mother with Dante through offers of, provision or attempted provision of services to such mother and Dante, and such offers of services continued after such filing on December 5, 2007;

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

(5) in light of the mother's refusal to cooperate with DCF concerning hair tests to determine her sobriety, and in light of her very negative feelings about DCF, such DCF efforts are no longer required;

(6) because of the events, relationships, behavior and issues set forth in this decision, (i) after Dante was removed from the mother on or about September 7, 2006, (ii) prior to the filing of the December 5, 2007, TPR petition and (iv) thereafter through the last date of the hearing, the mother failed to achieve the degree of personal rehabilitation that:

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

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

(c) would encourage the belief, within a reasonable time in the future, considering Dante's age, past and current circumstances and needs, and her history of substance abuse and mental health problems she could assume a position in Dante's life as a responsible parent providing an environment that was free of physical violence, free of emotional neglect of Dante, and that provided for and insured the health, safety and welfare of Dante;

(7) Dante has been out of the care and custody of the mother for more than fifteen months and in foster care for more than fifteen months; and thus

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

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

WITH RESPECT TO THE FATHER OF DANTE, DCF HAS PROVED, BY CLEAR AND CONVINCING EVIDENCE, THE GROUNDS A AND D ALLEGATIONS OF ITS TERMINATION OF PARENTAL RIGHTS PETITION AS AMENDED.

With respect to the father of Dante, who has had no contact with Dante during his entire life, DCF has proved by clear and convincing evidence that Dante has been abandoned by the father in the sense that the father has failed to maintain a reasonable degree of interest, concern or responsibility as to Dante, and that there is no parent-child relationship.

THE BEST INTEREST OF SELENA

The court has considered the best interest of Selena. The court has considered whether it is in the best interest of Selena to be returned to the mother or the father, including whether the mother or the father reasonably could be expected and relied upon to provide the safe, secure, nurturing, stable, violence-free, substance abuse-free and permanent environment idealized in the statutes and case law, and the court has considered Selena's ". . . interests in sustained growth, development, well-being, and continuity and stability of its environment . . ." In re Ryan R., 102 Conn.App. 608, 625-26 (2007). Unfortunately for Selena, each parent has been and currently is unable to provide to her such safe, secure, nurturing, stable, violence-free, substance abuse-free and permanent environment.

The court has considered, inter alia, the evidence presented concerning Selena's situation and circumstances, the mother's and the father's situations and circumstances at the time of and prior to Selena's removal by DCF and prior to the filing of the neglect petition and then prior to the filing of the TPR petition; Selena's current situation, needs and circumstances; her strong feelings to have no further contact with either parent; the length of time Selena has been out of the mother's and the father's care, custody and control and in foster care; the father's and the mother's general lack of provision of such care for any recent material period; the domestic violence and physical abuse witnessed by and inflicted on Selena; the father's and the mother's history of substance abuse, alcohol abuse and mental health issues; and the reports of Selena's growth, progress, stability, continuity and development in foster care.

The court finds, by clear and convincing evidence, that it is in the best interest of Selena and that it is necessary for her well-being, growth, development, safety, security, stability, continuity, consistency and permanency, that the rights of the father and the mother be terminated.

THE BEST INTEREST OF DANTE

The court has considered the best interest of Dante. The court has considered whether it is in the best interest of Dante to be returned to the mother or the father (who is unknown except for a first name), including whether the mother or the father reasonably could be expected and relied upon to provide the safe, secure, nurturing, stable, violence-free, substance abuse-free and permanent environment idealized in the statutes and case law, and the court has considered Dante's ". . . interests in sustained growth, development, well-being, and continuity and stability of its environment . . ." In re Ryan R., 102 Conn.App. 608, 625-26 (2007). Unfortunately for Dante, each parent has been and currently is unable to provide to him such safe, secure, nurturing, stable, violence-free, substance abuse-free and permanent environment. The court has considered, inter alia, the evidence presented concerning Dante's situation and circumstances, the mother's situation and circumstances at the time of and prior to Dante's removal by DCF and prior to the filing of the neglect petition and then prior to the filing of the TPR petition; Dante's current situation, needs and circumstances; the length of time Dante has been out of the mother's care, custody and control and in foster care; the father's and the mother's general lack of provision of such care for any recent material period; the previous domestic violence and physical abuse in which the mother participated and which was witnessed by and inflicted on Selena and her half-brothers to their detriment; the mother's history of substance abuse, alcohol abuse and mental health issues; and the reports of Dante's growth, progress, stability, continuity and development in foster care.

The court finds, by clear and convincing evidence, that it is in the best interest of Dante and that it is necessary for his well-being, growth, development, safety, security, stability, continuity, consistency and permanency, that the rights of the father and the mother be terminated.

CONCLUSION AND ORDERS

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

(a) DCF has proved, by clear and convincing evidence, Ground B, failure to rehabilitate, relating to Selena; and

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

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

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 of Selena:

(a) DCF has proved, by clear and convincing evidence, Ground B, failure to rehabilitate, relating to Selena; and

(b) it is in the best interest of Selena to terminate the parental rights of the father.

Accordingly, it is hereby ORDERED that the parental rights of the mother and the father to Selena are hereby terminated.

The commissioner of the department of children and families is appointed as the statutory parent of Selena. The initial status report concerning Selena 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 set forth in General Statutes 17a-112(o).

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

(a) DCF has proved, by clear and convincing evidence, Ground B, failure to rehabilitate, relating to Dante; and

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

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

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 of Dante:

(a) DCF has proved, by clear and convincing evidence, Ground A, abandonment, and Ground D, no parent-child relationship, relating to Dante; and

(b) it is in the best interest of Dante to terminate the parental rights of the father.

Accordingly, it is hereby ORDERED that the parental rights of the mother and the father to Dante are hereby terminated.

The commissioner of the department of children and families is appointed as the statutory parent of Dante. The initial status report concerning Dante 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 set forth in General Statutes 17a-112(o).

Judgment shall enter accordingly.