Opinion
Nos. U06-CP06-005973-A, U06-CP0-6005974-A
October 1, 2009
MEMORANDUM OF DECISION
This is a termination of parental rights ("TPR") case.
On July 27, 2009, the assistant attorney general, the current department of children and families ("DCF") worker assigned to the family, the mother, her attorney, the father's attorney, the attorney for the children Sherine G. ("Sherine") and Yaisha G. ("Yaisha") and their separate guardian ad litem appeared before the court. The father of Sherine and Yaisha did not appear for the TPR hearing and he was defaulted. On November 19, 2008, the father had appeared in the regional court; he had been advised of his rights with respect to the petitions for termination of his parental rights ("TPR petitions") and counsel was appointed for him. The father knew of the date and time of the TPR hearing but he did not make his own arrangements for transportation, and he also did not make timely contact with his attorney or the DCF worker prior thereto for transportation. His attorney was unable to reach him during the July 27, 2009 hearing. At the beginning of the afternoon session, at his attorney's request such attorney was excused from further attendance at the hearing.
On July 27, 2009, after the hearing commenced the mother decided to offer her written consent to the termination of her parental rights. She was canvassed, and the court (Bear, J.) finds each such consent to be knowingly, voluntarily and intelligently made by the mother with the adequate advice and the effective assistance of her counsel, and the court has accepted such consents. With respect to the mother, upon the motion of the assistant attorney general, the court permitted DCF to amend its petitions to add the ground of consent, and the court also permitted DCF to withdraw the non-consensual TPR grounds alleged against the mother set forth in its petitions. After such consents and amendments were accepted, the mother was excused from further participation in the proceeding.
The hearing then proceeded with respect to the issue of whether the father's parental rights should or should not be terminated and to the question of whether termination of each parent's parental rights was in the best interest of Sherine and Yaisha. The hearing was then closed except for briefs containing final argument and positions on an ICPC issue.
FACTS
Each of the following facts is found by clear and convincing evidence.
1. Sherine was born in October 1998, and Yaisha was born in August 2000.
2. On December 28, 2006, DCF filed neglect petitions.
3. On January 30, 2007, DCF invoked a ninety-six-hour hold on each child and on February 2, 2007, DCF filed ex parte motions for temporary custody ("OTC"). On February 2, 2007, the court found that Sherine and Yaisha were in immediate physical danger from their surroundings and that continuation in the mother's home (the father was not a custodial parent) was contrary to their welfare. On February 2, 2007, the court issued preliminary specific steps to the father and the mother. On February 7, 2007, the court sustained the OTCs.
4. On October 3, 2007, the court adjudicated Sherine and Yaisha neglected and committed each of them to the care, custody and guardianship of DCF.
5. On October 22, 2008, DCF filed its petitions to terminate the rights of each parent. In its TPR petitions DCF alleged, inter alia, that in violation of General Statutes § 17a-112(j)(3)(B)(i), the mother and the father of Sherine and Yaisha failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the ages and needs of Sherine and Yaisha, the mother or the father could assume a responsible position in either of their lives.
6. The father, who was born in June 1974, completed the seventh grade in Puerto Rico. (Exhibit 4, 3.) He received special education services and counseling services while in school. Id. His first child was born in October 1990, and thus was conceived while he was fifteen. Id. He was unsure of the mother's last name although he claimed to have a three-year relationship with her. Id. They separated shortly after the birth of such child. Id.
In 1994 he first used marijuana. Id. Also in 1994, he was arrested and convicted for sale and possession of narcotics and he was sentenced to three years of probation. Id.
In 2000 the father and the mother moved to Connecticut. Id., 4. In 2002 the mother and he separated and he relocated to New York. Id. Subsequently in 2002 he was convicted of possession of narcotics and sentenced to two years of probation. Id.
In 2003 the father began to receive mental health services in New York. Id. He was prescribed Zoloft, Seroquel and Klonopin. Id. He returned to Connecticut and a Connecticut behavioral health facility continued such medications. Id.
In 2004 the father was hospitalized for six days because of depression and suicidal ideation. Id.
In 2008, the father had a substance abuse relapse. Id., 9. On April 3, 2008, he completed a substance abuse evaluation and he was referred for medication management. On such date the father had symptoms of depression and auditory hallucinations. Id. On April 7, 2008, the father was prescribed Seroquel, Depakote, Abilify and Zoloft. Id. The father missed two follow-up appointments on April 21, 2008, and on June 2, 2008, and the father discontinued his treatment. Id. On May 27, 2008, the father tested positive for cocaine. Id. The father missed a June 2008 scheduled mental health evaluation that he did not attempt to reschedule. Id.
Despite the father's long-term relationships with the mother and subsequently another woman, as of September 29, 2008, for approximately ten years the father had been married to a woman from whom he separated in approximately 2001. Id., 4. He could not remember her last name. Id.
As of September 29, 2008, the father was receiving social security disability income because of back problems and depression. Id. He stated that he had been incapacitated since the summer of 2007. Id. As of such date he had high cholesterol, back problems, depression and black outs, but he was not receiving psychiatric services. Id.
As of September 29, 2008, the father was homeless and he was temporarily residing with his "psychological sister" and her family. Id., 9.
7. As of October 22, 2008, the date of the filing of the TPR petitions, the father had not rehabilitated to the point where he could adequately care for Sherina and Yaisha, nor was he likely to do so in the reasonable future.
8. Additional facts are set forth, infra. Unless otherwise specified, all facts set forth in this decision are found by clear and convincing evidence.
LAW 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 In re Joseph L., 105 Conn.App. 515, 939 A.2d 16 (2008); in In re Jessica M., 217 Conn. 459, 467-70, 586 A.2d 597 (1991); and in 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). See also In re Christine B., 2009 Ct.Sup. 6273, No. H12-CP07-011455-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Bear, J., April 8, 2009).
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 father. See pages 1-4, supra. In addition to those findings, the court makes the following findings applicable to the father.
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. The father:
DCF has provided the father with services and the father made efforts to comply with some services provided by DCF, but not with respect to administrative case reviews, substance abuse services, medication management, mental health needs, and adequate housing, inter alia.
B. Sherine and Yaisha have been offered and have received the following services from or facilitated by DCF, inter alia:
medical and dental services plus an MDE;
reunification services;
visitation;
transportation;
services related to special needs and issues;
foster care services; and
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 the mother and the father with Sherine and Yaisha. The reasonable efforts made and facilitated by DCF with respect to services for each parent and Sherine and Yaisha were timely and adequate to address the issues that led to DCF involvement with 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 February 2, 2007, the court ordered specific steps for the father and the mother. The father generally did not in a timely manner perform such steps concerning substance abuse and mental health services, including medication management, and housing. Despite the statements of the children, especially Yaisha, the father has denied that the children have issues as a result of sexual abuse.
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.Since the filing of the TPR petitions, the mother and the father in general have regularly visited with Sherine and Yaisha and they have emotional ties to the children, but neither parent is in a position adequately to care for or parent them, nor will they be in the reasonable future. Each child is receiving adequate care in their current foster homes.
5. The age of each child:
Sherine is ten (almost eleven) years old.
Yaisha is nine years 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.
As set forth throughout this memorandum of decision and in the evidence, the father has not been able to adjust or improve his circumstances, conduct or conditions to enable him to make it in the best interest of Sherine or Yaisha to be placed with him in the foreseeable future. He has not at any time been Sherine's or Yaisha's primary parent.
As set forth throughout this memorandum of decision and in the evidence, the mother has not been able to adjust or improve her circumstances, conduct or conditions to enable her to make it in the best interest of Sherine or Yaisha to move in with her in the foreseeable future. The mother has failed to benefit from needed substance abuse and mental health services. The mother has a seventh-grade education and below-average cognitive ability. (Exhibit 11, 35, 46.) She has had difficulty in accepting the children's sexual abuse issues. Id., 46. As with the father's denial, the psychological examiner found that "[t]his is very disconcerting should the children return to her care." Id., 46-47.
7. The extent to which a parent has been prevented from maintaining a meaningful relationship with the children by the unreasonable act or conduct of the other parent of the children, or the unreasonable act of any other person or by the economic circumstances of the parent.There was no evidence presented that the father has been prevented from maintaining a relationship with Sherine or Yaisha respectively for any reasons other than his circumstances including his cognitive limitations, long history of substance abuse and mental health issues. Id., 36-40, 43-44, 46-47.
Such father did not provide specific information concerning his current or past economic circumstances.
There was no evidence presented that the mother has been prevented from maintaining a relationship with Sherine or Yaisha for any reasons other than her circumstances including limited cognitive ability, chronic substance abuse and mental health problems, and inability to rehabilitate. Id., 25-32, 35-36, 45-46.
Such mother did not provide specific information concerning her current or past economic circumstances.
WITH RESPECT TO THE FATHER OF SHERINE AND YAISHA, DCF HAS PROVED, BY CLEAR AND CONVINCING EVIDENCE, THE GROUND B 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, and DCF has made reasonable efforts to locate and has located the mother and the father who appeared in the TPR case;
(2) there is no other action pending in any other court affecting the custody of Sherine or Yaisha known to this court. Neither the mother nor the father has claimed to be affiliated in her or his lineage with any Native American tribe;
(3) on October 3, 2007, Sherine and Yaisha were adjudicated neglected, and each was committed to the care, custody and guardianship of DCF;
(4) prior to and after filing its October 22, 2008, TPR petitions, DCF made reasonable efforts to reunify the father with Sherine and Yaisha through offers of and provision of services, including but not limited to visitation, substance abuse evaluation and treatment, medication management, mental health treatment, and a psychological evaluation, but the father was unable or unwilling to benefit in a timely way from such reunification efforts, and the father was not able to reach a point where after the October 3, 2007, adjudication of neglect reunification with him was in best interest of Sherine or Yaisha; and
(6) the father of Sherine and Yaisha, who were adjudicated neglected, has failed to, is unable and/or is unwilling to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time from the date of the filing of the TPR petition or from July 27, 2009, the date of the TPR hearing, considering the ages and needs of Sherine and Yaisha, he could assume a responsible position in either of their lives as a day-to-day full-time parent.
THE BEST INTEREST OF SHERINE AND YAISHA
The court has considered the best interest of Sherine and Yaisha. The court has considered whether it is in the best interest of Sherine and Yaisha to be returned to the mother or to be placed with the father, who has not at any time been a primary care giver to or custodian of either child, including whether the mother or the father reasonably could be expected and relied upon to provide the safe, secure, nurturing, stable and permanent environment idealized in the statutes and case law, and the court has considered Sherine's and Yaisha's ". . . interests in sustained growth, development, well-being, and continuity and stability of [their] environment . . ." In re Ryan R., 102 Conn.App. 608, 625-26 (2007). Unfortunately for Sherine and Yaisha, each parent has been and currently is unable to provide either of them such safe, secure, nurturing, stable and permanent environment. On the other hand, in foster care, each has made progress emotionally and in addressing the serious issues that have arisen because of their past negative experiences.
The court has considered, inter alia, the evidence presented concerning Sherine's and Yaisha's past situations and circumstances; the mother's and the father's situations and circumstances at the time of and prior to the January 30, 2007, removal by DCF and then prior to the October 22, 2008 filing of the TPR petition; the length of time each child has been out of the mother's care, custody and control and in foster care; the father's history of not being a primary care giver at any time; the father's and the mother's general lack of provision for Sherine's and Yaisha's care or financial support at any recent material period; Sherine's and Yaisha's current situations, issues, needs and circumstances; and the reports of growth, progress, stability, continuity and development in foster care and as a result of the services provided directly and indirectly by DCF.
The court finds, by clear and convincing evidence, that it is in the best interest of Sherine and Yaisha and that it is necessary for their well-being, growth, development, safety, security, stability, continuity, consistency and permanency and for closure that the rights of the biological father and the biological 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:
(a) the mother, with adequate advice from and effective assistance of counsel, consented to the termination of her parental rights to Sherine and Yaisha;
(b) DCF proved by clear and convincing evidence that Sherine and Yaisha have been found by the Superior Court to have been neglected in a prior proceeding, the father of each such child had been provided specific steps to take to facilitate the return of each such child to him, DCF made reasonable efforts to facilitate suoh reunification, and the father has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of each such child, he could assume a responsible position in the life of each such child; and
(c) it is in the best interest of Sherine and Yaisha to terminate the parental rights of the biological mother and the biological father.
Accordingly, it is hereby ORDERED that the parental rights of the mother and the father to Sherine and Yaisha are hereby terminated.
The commissioner of the department of children and families is appointed as the statutory parent of Sherine and Yaisha. The initial status report concerning Sherine and Yaisha 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, including those set forth in General Statutes § 17a-112(o).
Judgment shall enter accordingly.