In re Vicente S.

Full title: IN RE VICENTE S., IN RE ANTHONY S.-T., IN RE JOSELIANN S.-T., IN RE EVELYN…

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

Date published: May 18, 2009

2009 Ct. Sup. 8450 (Conn. Super. Ct. 2009)

Opinion

Nos. U06-CP04-004779-A, U06-CP04-004780-A, U06-CP04-004781-A, U06-CP06-005466-A

May 18, 2009

MEMORANDUM OF DECISION

BEAR, J.

These are termination of parental rights ("TPR") cases. On March 20, 2008, the commissioner of children and families ("DCF") filed petitions for the termination of the rights of each parent ("TPR petitions") to Vicente S. ("Vicente"), Anthony S.-T. ("Anthony"), Joseliann S.-T. ("Joseliann") and Evelyn S.-T. ("Evelyn"). Pursuant to General Statutes § 46b-129(k), on September 23, 2008, DCF moved for approval of the goals of its permanency plan for each of the children of termination of parental rights and adoption, and such motions and the mother's objections thereto filed October 7, 2008, were consolidated for hearing with the TPR petitions.

The TPR petitions and the motions for review of permanency plan were heard¹ at the Child Protection Session of the Superior Court ("CPS") on May 5 and 7, 2009. On each such day of the hearing the mother and her attorney were present. The father of such children and his attorney also were present. The attorney for each of the children, the children's guardian ad litem, an assistant attorney general representing DCF and a representative of DCF were present.

1 Although these matters may sometimes be referred to as trials, 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.

At the conclusion of the hearing, the parties were offered the opportunity to submit post-hearing briefs but chose instead to make oral closing statements.

FACTS:

The following facts have been proved by clear and convincing evidence:²

2 Practice Book § 32a-3 provides: . . . (b) The standard of proof applied in a decision to terminate parental rights or a finding that efforts to reunify a parent with a child are no longer appropriate, is clear and convincing evidence.

1. The mother was born in December 1987. As of the date of this decision, she is twenty-one years old and has given birth to five children. The four children named in the TPR petitions are her oldest children. Vicente was born in December 2001, shortly after his mother became fourteen years old. She was thus thirteen when Vicente was conceived. Anthony was born in March 2003, when the mother was fifteen years old. Joseliann was born in May 2004, when the mother was sixteen years old. Evelyn was born in July 2005, when the mother was seventeen years old. A half-sibling, Luis, was born in March 2007, when the mother was nineteen years old. On October 3, 2007, the mother transferred custody of Luis to his biological father where he remained until the father was arrested and incarcerated. DCF then took custody of Luis and placed him in foster care.

2. The father was born in February 1984. He was seventeen years old when Vicente was conceived and born; nineteen years old when Anthony was born; twenty years old when Joseliann was born; and twenty-one years old when Evelyn was born.

3. Although DCF and the mother's family were aware of the ages of the mother and the differences between the ages of the mother and the father when Vicente, Anthony and Joseliann were conceived, the father was not prosecuted for sexual assault in the second degree pursuant to General Statutes § 53a-71(a)(1) or for any other criminal offense relating to his sexual contact with the mother and the conception of each of such children.

4. Neither the father, the mother nor their families have provided any meaningful financial support for any of the four children during their lives.

5. The mother first came to the attention of DCF on June 28, 2004, when DCF received a report that the mother, who was then sixteen, had left Vicente, Anthony and Joseliann alone in her vehicle with the keys in the ignition while she was in a doctor's office.

6. On June 29, 2004, a DCF worker made an unannounced visit to the mother's home where such worker observed the mother returning from a store and Vicente playing alone in the front yard. The mother asserted to the worker that then two and one-half year old Vicente knew not to go into the street in front of the home, so it was not improper to leave him alone in the front yard. The mother admitted to the worker that she had left all three children alone while she went to the store. A DCF investigator observed Anthony and Joseliann sleeping on couches inside the home.

7. On June 29, and on July 28, 2004, the mother refused DCF's offer of a parent aide and parenting classes.

8. On August 6, 2004, DCF filed neglect petitions for each of the three children. The children remained in the care of the mother.

9. On June 8, 2005, the father was arrested and incarcerated.

10. On June 22, 2005, each of such three children was adjudicated neglected and the court ordered protective supervision for six months. The children thus remained in the care of the mother. On June 22, 2005, specific steps were issued to the mother but not to the father because of his incarceration.

11. Evelyn was born in July 2005, and was placed in the care of the mother after such birth. Five weeks before her birth, the mother encouraged the father to steal a vehicle because they did not have a vehicle to transport them, and the father, with the mother's participation, did so.

On June 7, 2005, they were arrested. The father was charged with robbery in the first degree and incarcerated pending trial. (Exhibit 1.) Because of her age at the time of the offense, the mother was treated as a youthful offender and the offense and disposition thereof does not appear on her criminal record. (See exhibit 3.) The mother stated that "I came out OK because I was a minor." (Exhibit 29, 4.) The matter is referred to in the evidence as an attempted carjacking.

12. On September 8, 2005, the father pled guilty to the offense and was sentenced to two years incarceration with a release date of June 7, 2007.

13. On October 26, 2005, the court extended the period of protective supervision through June 22, 2006.

14. On January 6, 2006, Joseliann and Evelyn were hospitalized because of asthma and bronchial infections. They were treated and released with an instruction to the mother to return with them in three days for a follow-up examination. The mother did not return with them as instructed. Also, the mother had not kept the children up to date on their immunization schedules.

15. On January 8, 2006, the mother was involved in domestic violence and she was sexually molested by a person on probation arising out of sale of heroin who she had allowed to live in her home.

16. On January 9, 2006, when a DCF worker went to the apartment, there was a strong odor of marijuana. The mother refused to attend a substance abuse assessment offered by DCF.

On such date, the mother admitted that she did not have adequate food and diapers in her home for the children and that she was two months in arrears in her rent.

17. On January 10, 2006, the mother signed a service agreement with DCF but she failed to comply with the terms and conditions of such agreement. Instead, she placed the children in the care of her mother (the maternal grandmother) and the person who had molested her, and she left Connecticut. She subsequently admitted that she did not tell the maternal grandmother that she was leaving Connecticut. The maternal grandmother had arrived in Connecticut earlier in January 2006, from Puerto Rico.

18. On January 19, 2006, the DCF worker then assigned to the family received a report from the police that the mother had left Connecticut and that the children were in the care of the maternal grandmother and the person who had molested the mother. This report was confirmed by a service provider. Another DCF social worker visited the maternal grandmother who lied to her about the whereabouts of her daughter and her knowledge of the molester. On January 19, 2006, the mother contacted DCF and confirmed that she had left Connecticut but that she would return within a week. On such date, at 11:45 a.m., DCF invoked a ninety-six-hour hold on each of the children and Joseliann and Evelyn were returned to the hospital because each had an ear infection. Evelyn also had a bronchial infection, diaper rash, a yeast infection and she needed medical help with her breathing. Each of the children has been in the custody of DCF since January 19, 2006, approximately forty months prior to the TPR hearing and this court's decision. On January 19, 2006, Vicente was four, Anthony was two, Joseliann was one, and Evelyn was six months old.

19. While Vicente was in the care of the mother, his issues included asthma, hyperactivity, aggression, lack of good hygiene, lack of social skills and delays in the areas of cognitive, personal-social, adaptive and communicative skills. Anthony was delayed in cognitive, personal-social, fine motor, receptive language, total communication skills, and age appropriate skills in adaptive self-help and expressive language. He also had a history of asthma. While in the mother's care, Joseliann had issues concerning asthma, lack of hygiene and recurrent diaper rash. Evelyn also had a history of asthma.

20. Prior to the January 19, 2006, removal of the children, the mother was "marginally" cooperative with services and recommendations offered by DCF. (Exhibit 20, 3.) She was unemployed, dependent on DCF and DSS for payment of her expenses and to provide for the children's basic needs. Id., 8-9.

21. On January 23, 2006, DCF filed a neglect petition concerning Evelyn, motions for temporary custody of the children that were granted ex parte, and in the cases of Vicente, Anthony and Joseliann motions to modify disposition from protective supervision to commitment.

22. On January 23, 2006, the mother returned to Connecticut from Virginia. On January 25, 2006, the mother tested positive for cocaine and benzoylecgonine (the primary metabolite of cocaine). On January 26, 2006, the mother returned to Virginia.

23. On January 27, 2006, the court sustained the orders of temporary custody (the mother had returned to Virginia after three days in Connecticut). Specific steps were issued for the mother and the father.

On February 8, 2006, the mother returned to Connecticut from Virginia. The mother claimed that she was seeking employment in Virginia. However, she had become involved with an individual who lived in Virginia and was more focused on her personal life than reunification with her children. (Exhibit 19, 6.) After the mother returned to Connecticut in February 2008, she did not visit with her children for a period of weeks. Thereafter, the mother was inconsistent with her visits from March 2006, through July 2006. She missed ten of sixteen visits. Id., 5. Thus, for the first six months after the removal of the children, a crucial period, the mother was unable or unwilling to make consistent efforts at reunification. During this period, the mother had "a pattern of disappearing for two weeks at a time and then re-appearing." Id., 4.

24. On April 6, 2006, the court modified the dispositions of protective supervision to commitment of Vicente, Anthony and Joseliann to the care, custody and guardianship of DCF.

25. After June 2006, the mother became more consistent in visitation and in compliance with other services.

26. In October 2006, DCF's plan was reunification between the mother and the children.

27. On December 20, 2006, the father signed an agreement that DCF no longer had to make reasonable efforts toward or provide services for his reunification with the children. During their lives to that date, the father had not provided either regular or consistent physical care or financial or emotional support for the children.

28. In April 2007, when Luis was approximately one month old, the mother was arrested for breach of peace and criminal mischief after an incident with the father of Luis. This arrest caused her to be placed on probation by her supportive housing/healthy choices service provider. The mother thereafter agreed with such provider to engage in domestic violence and anger management classes and in individual counseling. After the mother failed to proceed with any of the foregoing requirements and after she missed four scheduled home visits with a supportive housing clinician in June 2007, she was discharged from such program for non-compliance. Prior to April 2007, the mother had failed to complete substance abuse, anger management and women's group counseling.

29. In May 2007, the father was released from incarceration. He began and maintained weekly visits with the children.

30. In May 2007, in preparation for the mother's reunification with Vicente and Anthony, DCF increased the mother's visitation with them. However, prior to August 2007, the mother cancelled four scheduled visits, and DCF and service provider efforts at such reunification were discontinued. Despite the mother's erratic approach to reunification in August 2007, DCF continued to plan for possible reunification between the mother and some or all of the children. (Exhibit 18, 11.) DCF noted that "[i]n the event that reunification can not occur within a timely manner, [DCF] will file [TPR petitions]." Id.

31. On June 19, 2007, the mother was arrested for improper use of license, failure to insure a vehicle and operating a vehicle under a suspended license.

32. In August 2007, the father was charged with risk of injury to a minor, possession of narcotics with intent to sell and possession of narcotics in a school zone. A warrant for his arrest was issued on August 14, 2007, and he was arrested and incarcerated on November 28, 2007. On January 24, 2008, the father was convicted of possession of narcotics with intent to sell. His maximum release date is November 27, 2011.

As of March 20, 2008, the father had not visited with the children since August 8, 2007. Between August 8, 2007 and March 20, 2008, he had not communicated with them and he had not provided any financial or other support to them. As of March 20, 2008, Evelyn did not know him as a parent.

33. The mother allowed months to pass without contact as her children were forming strong relationships with their foster parents. Other than visitation, the mother did not engage in any services between July 2007 and January 2008. On October 3, 2007, she cancelled her weekly visits with her children.³ Also on October 3, 2007, the mother placed Luis in the care of his father, ⁴ and ceased to have contact with him through the filing by DCF of the TPR petitions. On January 3, 2008, the mother telephoned DCF to inquire about resuming visitation, and her visitation resumed in February 2008.

3 The mother ostensibly broke off all contact with her children to avoid being arrested on a warrant for her arrest for failure to appear in court.

4 The father of Luis maintained custody of him through July 30, 2008, when he was arrested and incarcerated. Luis was then placed in DCF foster care.

34. On March 20, 2008, DCF filed its petitions to terminate the rights of each parent to each child.⁵ In each such TPR petition DCF alleged that in violation of General Statutes § 17a-112(j)(3)(B), the mother and father of Vicente, Anthony, Joseliann and Evelyn 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 of them, the mother and/or the father could assume a responsible position in each of their lives. Additionally, DCF alleged that in violation of General Statutes § 17a-112(j)(3)(A), the father of Vicente, Anthony, Joseliann and Evelyn abandoned them and that in violation of General Statutes § 17a-112(j)(3)(D), the father of Vicente, Anthony, Joseliann and Evelyn had no parent-child relationship with them.

5 Practice Book § 35a-7A(a) provides:

In the adjudicatory phase, the judicial authority is limited to evidence of events preceding the filing of the petition or the latest amendment, except where the judicial authority must consider subsequent events as part of its determination as to the existence of a ground for termination of parental rights.

In Ground (B) cases, a court may consider events subsequent to the filing date of the petitions, but it does not have to do so. In re Jennifer W., 75 Conn.App. 485, 494-95 (2003); In re Selena O., 104 Conn.App. 635, 646 (2007); In re Nelmarie O., 97 Conn.App. 624, 628, 905 A.2d 706 (2006); In re Stanley D., 61 Conn.App. 224, 230 (2000); and In re Amber B., 56 Conn.App. 776, 785, 746 A.2d 222 (2000).

35. On February 10, 2006, Dr.___, who was qualified as an expert and who testified at the TPR hearing, had performed a court-ordered psychological evaluation of the mother. Her findings about the mother were still valid as of the date of the filing of the TPR petitions and as of the date of her testimony:

[The mother] is an 18 year-old [as of February 2006] mother of [ ] four children who did not benefit from adequate parental supervision, witnessed parental self-involvement, [and] pleasure driven behaviors. Since age 12 she has been in a sexual relationship and had her first child at age 14, contributing to stunting of emotional, social and moral development. She has manifested early personality traits of oppositionality, impulsivity, low adherence to authority and pleasure seeking behaviors. Intellectual abilities are within the borderline range and her logical reasoning is flawed, unconventional with unrealistic goals. Academic attainment is low which greatly limits her capacity to be self-sufficient and financially viable. She has attained minimal academic levels and her lifestyle has been dependent and marginal. The early defiance and erratic behaviors led to premature pregnancies and adult responsibilities, without adequate social or emotional maturity. [The mother] has not internalized a code of adaptive social values that permits her to make appropriate decisions for self or her children. Lacking the moral/value development, she will have great difficulty discriminating essential factors with which to guide decisions. She has difficulty delaying gratification, subordinating her needs for those of her children or considering potential risks for the emotional or moral development of her children.

[The mother] does not have awareness of the extent of her victimization, or the impact her actions have on her children. She blindly and indiscriminately allies herself with those who have victimized her. [The mother's] awareness, judgment and caretaking skills are severely compromised. Her understanding of child management techniques and parental responsibilities is severely limited. Her ability to react with adequate judgment at critical times to protect her children is diminished, which contributes to high risks for a child. She does not understand the responsibilities and demands inherent to child care or have understanding of the emotional, physical or social needs of a child. While not being an immediate physical risk to a child, children in her exclusive care are at risk of being exposed to damaging moral, social circumstances and experiencing neglect. At this time, [the mother] is not developmentally equipped to care for young children. She will require extensive training and time to attain the maturity required to provide effective supervision. [The mother] will benefit from hands-on experiences and guidance to develop understanding of the needs of children, long-term psychotherapy to facilitate her own development [ ] and growth of social and moral codes of behaviors. However, due to the low psychological mindedness, it is unlikely she will adhere. Her children have intense needs and require specialized medical, speech and psychiatric care. It is unlikely, that in the short-term [the mother] will be able to handle the multiplicity of demands their needs will place on her. Until she gains necessary social adaptive skills, develops insight, and adheres to recommendations for [a] minimum of one year, it is not recommended that the children or youngest child be in her care . . .

(Exhibit 29, 11-12.) As of the filing of the TPR petitions, and thereafter as of the end of the TPR hearing, the mother did not "gain [ ] necessary social adaptive skills, develop [ ] insight, and adhere [ ] to recommendations for [a] minimum of one year . . ."⁶

6 In this case, as in every case where children are removed from their biological parents and the parents eventually are respondents in a TPR hearing, the ideal result prior to such hearing would have been timely and successful reunification between one or both biological parents and the children. Unfortunately, in many cases, including this case, such biological parents were unwilling or unable in a timely manner over a period of years to take the actions necessary to make it in the best interest of the children to be reunified with either or both of them.

36. Witnesses testified that during her visits with them the mother had difficulty managing and responding to the behavior of Vicente and Anthony, and sometimes Joseliann.⁷ Her attorney elicited through cross-examination that DCF employees and others also had difficulty at times managing and responding to such behavior. His point seemed to be that since the children had behavior issues that were difficult for many people involved with them to address, they should be returned to the mother. This argument, however, ignores the mother's lack of parenting competence and is otherwise flawed. The more difficult and problematic a child's behavior is, the more likely it is that such child may need special services or individualized placement in a therapeutic or professional foster home, or, if necessary, a residential setting.

7 See also, e.g., the current DCF worker's August 20, 2008, study in support of current permanency plan (exhibit 15, 5):

[The mother] demonstrates appropriate interaction most of the time with the children, although she continues to struggle with discipline techniques, as her older children appear very active. The children are not responsive to her discipline often laughing when she attempts to discipline them. This generally leads to [the mother] yelling and losing control. She does not provide structure and usually gives in to their temper tantrums. In addition, [the mother] says inappropriate things to the children such as "pose sexy for mommy," and ask[s] the children "you think I'm sexy?"

A similar report appears in the April 20, 2009, amended social study in support of the TPR petitions (exhibit 14, 2):

When [the mother] visits with her children, she brings them something to eat and appears to enjoy visiting with her children. [The mother] has difficulties re-directing her children when necessary and maintaining their behaviors in a productive manner. [The mother] has been observed by DCF to at times [] get easily frustrated and is very sharp and quick to yell at her children when they argue or do not listen to her. [The mother] will raise her voice and yell at the children often making their [ ] behaviors worse. When this occurs, DCF will have to intervene and calm the children down.

The father also had difficulty parenting the children during visits. Id., 3.

37. Additional facts are set forth infra. Unless otherwise specified, all facts set forth in this decision are found by clear and convincing evidence.

GENERAL STATUTES § 17A-112(k) FINDINGS: 1. The timeliness, nature and extent of services offered, provided and made available to the parent and each child by an agency to facilitate the reunion of each child with the parent.

In addition to the services referred to above, each parent has been offered services including the following:

(A) The mother has been offered and/or has received individual services and services relating to her children from or facilitated by DCF for purposes of reunification including through Family Services of Greater Waterbury, Inc. (exhibit 13; exhibit 5, 3), Family Intervention Center, Inc. (exhibit 6), Morris Foundation (exhibit 5, 1), The Connection, Incorporated ( id., 2), New Beginnings (exhibit 4); a court-ordered psychological evaluation (exhibit 29); and through DCF (exhibit 5). Such services have included general reunification services, anger management classes, parenting classes, supervised visitation, transportation, substance abuse assessment and treatment services, and individual therapy.

(B) On and after December 20, 2006, pursuant to the father's agreement, DCF no longer was obligated to provide reunification services to the father. However, after the filing of the TPR petitions, the father requested visitation with the children and DCF has provided monthly visits at the prison in which he is incarcerated. While he was incarcerated DCF recommended to the father that he seek services through the Department of Corrections.

Additionally, the mother and the father were provided with administrative and case management services.

(C) In addition to the services described above, each of the children has been offered and has received the following services from or facilitated by DCF, inter alia:

medical and dental services plus an MDE;

reunification services;

supervised visitation;

transportation;

foster care services;

counseling services;

educational services; and

administrative and case management services.

All services offered and/or provided to the mother, the father and to each of the children have not been identified by any party as not reasonably timely under the circumstances.

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. CT Page 8460 DCF has made efforts that were reasonable under the circumstances to reunite the mother with each of the children. The father was not a candidate for reunification. See section 1 above and other discussions of reasonable efforts throughout this memorandum of decision. The reasonable efforts made and facilitated by DCF with respect to services for the mother and the father 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. Unfortunately, the mother was unable on a timely basis to appreciate, understand and/or accept the extent of her personal and parenting problems, to acknowledge her continuing need for services and to participate consistently in such services.

Within a month after DCF was forced to assume responsibility for the mother's children after she had abandoned them, the evaluator noted the mother's failure to keep her agreements, her "skewed manner" of describing how DCF became involved with her, her "low understanding of a value system to direct her decision making," her tendency "to rationalize and gloss over significant factors," her "flawed reasoning," her placement of blame on a DCF worker, her "markedly limited" "insight, awareness and moral development," her naiveté, the risks of leaving her children with the demonstratedly unreliable maternal grandmother, her concept that being exempt from criminal punishment as a minor is being absolved of responsibility for her thoughts and actions, her "weak moral code and low understanding of social rules," her need for immediate gratification, and the impact of such attitudes and beliefs on her ability to provide care for her children. (Exhibit 29, 5-6.)

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 January 27, 2006, the court ordered specific steps for the mother and for the father "to safely . . . regain the custody . . ." of each such child. On December 20, 2006, the father agreed that DCF could cease to make further efforts toward his reunification with the children.

The mother did comply initially with some of the steps; see exhibit 16, 14. The mother, however, did not maintain stable employment and adequate legal income; she was discharged from the supportive housing program; she missed scheduled visitations for lengthy periods; she did not complete individual counseling or anger management counseling; she had continued involvement with the criminal system; and she avoided substance abuse assessments and treatment.⁸ Thus, while the mother may have complied with some of the specific steps, prior to the filing of the TPR petitions she substantively failed to comply with important specific steps.

8 The current social worker described the mother's many liquor bottles on a bar in her apartment as the first thing that visitors to her apartment viewed upon entering. Also after the filing of the TPR petitions, the Family Intervention clinician testified that the mother tested positive for cocaine.
Such clinician also testified that in January 2009, the mother returned to Family Intervention for individual counseling not because the mother thought she needed counseling but only because DCF said she needed to be there.

Prior to the filing of the TPR petitions on March 20, 2008, both the mother and the father failed to rehabilitate to the point where either could adequately parent such children given the children's needs, and they were not likely to do so in the reasonable future. In In re Halle T., 96 Conn.App. 815, 835, 902 A.2d 670 (2006), cert. denied, 280 Conn. 924 (2006), the Appellate Court explained the failure to rehabilitate requirements as follows:

Failure to achieve a sufficient degree of personal rehabilitation is one of the seven statutory grounds on which parental rights may be terminated under § 17a-112(j)(3). We have stated that [p]ersonal rehabilitation as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent . . . [Section 17a-112] requires the trial court to analyze the [parents] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time . . .

Rehabilitate means to restore [a . . . delinquent person] to a useful and constructive place in society through social rehabilitation . . . The statute does not require [a parent] to prove precisely when she will be able to assume a responsible position in her child's life. Nor does it require her to prove that she will be able to assume full responsibility for her child, unaided by available support systems. It requires the court to find, by clear and convincing evidence, that the level of rehabilitation she has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date she can assume a responsible position in her child's life . . ." (Emphasis in original.)

See also In re Melody L., supra, 290 Conn. at 149-50.

In Halle T., the Appellate Court explained the foregoing finding requirement concerning a parent's level of rehabilitation to assume a responsible position in the child's life as follows:

[T]he adjudicatory determination to be made by the trial court is whether the parent of a child who has been found by the [S]uperior [C]ourt to have been neglected [or] uncared for in a prior proceeding has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . In conducting this inquiry, the trial court must analyze the respondent's rehabilitative status as it relates to the needs of the particular child.

Although the standard is not full rehabilitation, the parent must show more than any rehabilitation . . . Successful completion of the petitioner's expressly articulated expectations is not sufficient to defeat the petitioner's claim that the parent has not achieved sufficient rehabilitation . . . [I]n assessing rehabilitation, the critical issue is not whether the parent has improved [her] ability to manage [her] own life, but rather whether [she] has gained the ability to care for the particular needs of the child at issue . . . Thus, even if a parent has made successful strides in her ability to manage her life and may have achieved a level of stability within her limitations, such improvements, although commendable, are not dispositive on the issue of whether, within a reasonable period of time, she could assume a responsible position in the life of her children." (Citations omitted; emphasis added; internal quotation marks omitted.) In re Alejandro L., 91 Conn.App. 248, 259-60, 881 A.2d 450 (2005); see also In re Amneris P., 66 Conn.App. 377, 383-84, 784 A.2d 457 (2001); In re John G., 56 Conn.App. 12, 17-18, 740 A.2d 496 (1999).

In re Halle T., supra, 96 Conn.App. at 835-36.⁹ The same point is also set forth in In re Shyliesh H., 56 Conn.App. 167, 179-80, 743 A.2d 165 (1999), and in In re Danuael D., 51 Conn.App. 829, 840, 724 A.2d 546 (1999).

9 The "petitioners expressly articulated expectations" are the specific steps. In Practice Book § 26-1(n), "specific steps" are defined as "those judicially determined steps the parent or guardian and the commissioner of children and families should take in order for the parent or guardian to retain or regain custody of a child or youth." While DCF has a statutory duty to attempt to reunify children with parents, see General Statutes § 17a-112(j), the specific steps pertain only to allegations of failure to reunify, see General Statutes § 17a-112(j)(3)(B).

In Halle T., the Appellate Court also referred to Supreme Court statements of the applicable standard:

Our Supreme Court has instructed that the applicable standard in these types of cases "requires the court to find, by clear and convincing evidence, that the level of rehabilitation [a parent] has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date she can assume a responsible position in her child's life." (Internal quotation marks omitted.) In re Eden F., 250 Conn. 674, 706, 741 A.2d 873 (1999); see also In re Jeisean M., 270 Conn. 382, 399, 852 A.2d 643 (2004); In re John G., supra, 56 Conn.App. 17; In re Juvenile Appeal (84-3), 1 Conn.App. 463, 477, 473 A.2d 795, cert. denied, 193 Conn. 802, 474 A.2d 1259 (1984). A finding of when the respondent would be able to resume caring for the child was required neither by statute nor by case law. Instead, the court properly examined whether, "within a reasonable time, considering the age and needs of the child, [the] parent could assume a responsible position in the life of the child . . . (Internal quotation marks omitted.) In re John G., supra, 17.

In re Halle T., supra, 96 Conn.App. at 837.

The Appellate Court then focused on the importance in each case of the factual context of the child's circumstances:

We recently emphasized the importance of conducting this inquiry by considering the factual context of the particular child's situation. " The trial court must also determine whether the prospects for rehabilitation can be realized within a reasonable time given the age and needs of the child . . . What constitutes a reasonable time is a factual determination that must be made on a case-by-case basis." (Citation omitted; emphasis added; internal quotation marks omitted.) In re Alejandro L., supra, 91 Conn.App. 260; see also In re Eden F., supra, 250 Conn. 706; In re Christina V., 38 Conn.App. 214, 220-21, 660 A.2d 863 (1995); see also In re Shyliesh H., 56 Conn.App. 167, 173-74, 743 A.2d 165 (1999) (respondent's failure to achieve rehabilitation illustrated by lack of understanding of child's medical, psychiatric condition).

In re Halle T., supra, 96 Conn.App. at 837-38. In this case, neither parent has made material progress in addressing his or her own issues that have interfered with the ability of each such parent to meet each child's basic, continuing parenting needs. Despite or because of the severity of their respective issues, each parent unfortunately failed to see or appreciate the likelihood that their children would be removed from them in order to protect and provide for each such child's health, wellbeing and safety, and that such removal, because of the children's needs and each parent's inability to provide for them, could become permanent.

4. The feelings and emotional ties of such 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.

The children have been out of the care of the parents since January 19, 2006, after the mother left them to travel out of state with a man she claimed was a friend. The mother admitted that she did not tell the maternal grandmother who was left to care for such children with a man who the mother had recently accused of sexual molestation.

Each of the children knows the mother as a biological parent and is willing to visit with her. Such children no longer view her as a primary parental figure since their daily needs have been met for almost forty months by their respective foster parents.

Each of the children except for Evelyn knows the father as a biological parent and is willing to visit with him. Such children never knew him as a primary parental figure. Thus, none of the children currently has a primary parent-child relationship with either biological parent.

Each of the children has a good relationship with and relies upon his or her respective foster parents. Evelyn views her foster parents as her parents. As of the dates of the trial, each such child was bonded to the foster parents. Such foster parents provide a positive, stable environment, and they currently provide for the needs of each child, work with them in the home, and bring them to the out-of-home services they require.

5. The age of each of the children: CT Page 8465

Vicente is seven years old.

Anthony is six years old.

Joseliann is five years old.

Evelyn is three 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 including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions, and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child:

Neither the mother nor the father was able to make timely and sufficient efforts to make it in the best interests of the children to return home in the foreseeable future. The mother has not been able to maintain consistent visitation as scheduled with the children, to attend individual counseling for the length of time necessary to make meaningful progress, or to deal with her suspected alcohol issues.

The father has been incarcerated for a large amount of the period between June 28, 2004, and the present so that he has been unable to be a consistent parental figure for his children.

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 has been prevented from maintaining a relationship with any of the children by any unreasonable act or conduct of any other person. Neither parent has regularly visited, paid support for either of the children or regularly provided clothes or similar items to either of the children since their January 19, 2006, entry into DCF care.

LAW APPLICABLE TO TERMINATION OF PARENTAL RIGHTS CASES:

General Statutes § 17a-93 (and General Statutes § 45a-707(8)) provide:

"Termination of parental rights" means the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his parent or parents so that the child is free for adoption except it shall not affect the right of inheritance of such child or the religious affiliation of such child . . .

1. Prerequisites to a TPR determination, and the statutory grounds alleged by the petitioner DCF:

General Statutes § 17a-112(j)(3) provides that three prerequisites to a determination that any TPR petition should be granted are that the court must find by clear and convincing evidence

(1) that [DCF] has made reasonable efforts to locate the parent and to reunify the child with the parent in accordance with subsection (a) of section 17a-111b, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts, except that such finding is not required if the court has determined at a hearing pursuant to section 17a-111b, or determines at trial on the petition, that such efforts are not required . . .

In this case, prior to March 20, 2008, and prior to the end of the trial, both the father and the mother were unable or unwilling to benefit from reunification efforts.

The second requirement is that the court must find by clear and convincing evidence that

. . . (2) termination is in the best interest of the child . . .

This court finds by clear and convincing evidence that termination of the parental rights of the mother and the father is in the best interest of each child.

The third requirement is that the court find, by clear and convincing evidence, that DCF has proved at least one of the seven statutory grounds for termination. In re Melody L., 290 Conn. 131, 163 (2009); In re Davonta V., 98 Conn.App. 42, 43 (2006), affirmed, 285 Conn. 483 (2008); In re Shaun B., 97 Conn.App. 203, 214, 903 A.2d 246 (2006); In re Brea B., 75 Conn.App. 466, 473, 816 A.2d 707 (2003).

The ground alleged against each parent in this case is:

. . . (B) the child (i) has been found by the Superior Court or the Probate Court to be neglected or uncared for in a prior proceeding . . . [and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129] and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child.

(The official form does not include the bracketed language in the Ground (B)(i) allegations. See In re Nicholas G., Docket No. D03-CP07-002405-A, Superior Court for Juvenile Matters, Child Protection Session at Middletown (Bear, J., April 28, 2009). (Also, DCF has alleged against the father abandonment pursuant to General Statutes § 17a-112(j)(3)(A) and no parent-child relationship pursuant to General Statutes § 17a-112(j)(3)(D).)

This court finds by clear and convincing evidence that each child (i) has been found by the Superior Court for Juvenile Matters to be neglected in a prior proceeding;¹⁰ the parent of each such child has been provided specific steps to take to facilitate the return of each such child to the parent pursuant to General Statutes § 46b-129; and each parent has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of each such child, such parent could assume a responsible position in the life of the child.

10 A neglect case is initiated by a petition. General Statutes § 46b-129(a). A termination of parental rights case also is initiated by a separate petition but is treated as a separate proceeding. General Statutes § 17a-112(a).

Despite the order in General Statutes § 17a-112(j) in which the statutory prerequisites to be proved are set forth, prior to any termination of parental rights

[i]f the trial court determines that a statutory ground for termination exists, then it proceeds to the dispositional phase. During the dispositional phase, the trial court must determine whether termination is in the best interests of the child.

In re Eden F., 250 Conn. 674, 689, 741 A.2d 873 (1999).

2. Explanation of Ground B, failure to rehabilitate: A. General standards:

See pages 19-22, supra.

The Appellate Court has noted that in a number of cases despite a parent's progress toward personal rehabilitation the parent had not rehabilitated sufficiently to have the child returned and to avoid a termination of parental rights:

The court acknowledged the evidence that the respondent had made some progress in personal rehabilitation. Nevertheless, when viewed in the light of the child's significant needs, such progress, made over approximately two years, was insufficient when considered in relation to the child's special needs and her need for permanency. Our case law contains numerous examples of a parent, who, despite an admirable attempt, was unable to achieve rehabilitation sufficiently and, as a result, lost his or her parental rights. See, e.g., In re Vanna A., supra, 83 Conn.App. 22-25; In re Sheila J., supra, 62 Conn.App. 479-82 (respondent's efforts at rehabilitation too little, too late and court's finding that she failed to achieve sufficient rehabilitation despite some level of stability not clearly erroneous); In re Shyliesh H., supra, 56 Conn.App. 172-75 (although respondent testified that he loved child, trial court's finding that he lacked insight, responsibility to cope with her significant psychiatric disorder supported determination of failure to achieve rehabilitation).

In re Halle T., supra, 96 Conn.App. at 838-39 (footnote omitted). In addition to Sheila J., 62 Conn.App. 470, 481, 771 A.2d 244 (2001) (". . . In effect, however, the court determined that although the respondent demonstrated some efforts and had taken some steps toward rehabilitation, those efforts were too little and too late . . ."), the Appellate Court has upheld other trial court findings of rehabilitation efforts being "too little, too late . . .": see In re Brittany J., 100 Conn.App. 329, 335, 917 A.2d 1024 (2007) (". . . The court also found the testimony of James Connolly, a court-appointed psychologist, to be more credible on this issue and noted that the respondent's `recent cooperation with her psychotropic medication regimen on the eve of trial is "too little, too late" . . .'") and In re Dorrell R., 64 Conn.App. 455, 780 A.2d 944 (2001). The same can be said for the mother who several months after the filing of the TPR petitions and shortly before the trial finally began to seek out individual therapy relating to her serious personal history issues.

Although the court can consider rehabilitation efforts occurring after the filing of the TPR petition, it does not have to do so, and the court can determine that from the perspective of the age, needs and circumstances of the child and the usual application of Practice Book § 35a-7A that those efforts are not timely and need not be considered:

The court found by clear and convincing evidence that the respondent is unable or unwilling to make realistic and sustained efforts to conform her individual conduct to acceptable parental standards. The department made numerous referrals for the respondent during the pendency of this case. The respondent failed to take advantage of the referrals in a timely manner, and it was not until the filing of the termination petitions that she demonstrated any willingness to address her problems. The respondent has not made the changes necessary in her lifestyle in a timely manner that would indicate that she would be a safe, responsible and nurturing parent for the children.

In re Anthony H., 104 Conn.App. 744, 758 (2007), cert. denied, 285 Conn. 920, 943 A.2d 1100 (2008).

Also, the presence of a "strong loving bond" or a "strong bond" between a parent and a child in and of itself may not be sufficient to prevent termination of parental rights. In the Anthony H. decision, the Appellate Court considered substantive issues that kept the mother from "being a responsible parent to the children" despite a claim of a "strong loving bond":

The respondent also argues that the court's finding that she had failed to achieve rehabilitation is clearly erroneous because she has a strong loving bond with her children. The respondent relies on dicta in In re Jessica M., 49 Conn.App. 229, 714 A.2d 64 (1998), appeal dismissed, 250 Conn. 747, 738 A.2d 1087 (1999), to support her position. "[T]o the extent the parents can demonstrate to [the child] that they care about her and love her, they have a responsible position in her life." Id., 240. The respondent claims that she has a responsible position in the lives of the children by virtue of her strong loving bond with them. The respondents argument founders because she has multiple issues that prevent her from being a responsible parent to the children, such as failing to provide appropriate and reliable housing, failing to maintain employment and failing to keep them safe from R., who is abusive and has substance abuse problems, among other concerns.

In re Anthony H., supra, 104 Conn.App. at 762-63 (footnotes omitted). See also In re Anna Lee M., supra, 104 Conn.App. at 124, 143-44; In re Brittany J., supra, 100 Conn.App. at 333, 336-37; In re Tyqwane V., 85 Conn.App. 528, 533, 535-36 (2004). In a recent case, former Justice Peters observed:

The sad fact is that there is a difference between parental love and parental competence.

In re Christina M., 90 Conn.App. 565, 575, 877 A.2d 941, affirmed, 280 Conn. 474, 908 A.2d 1073 (2006).

The Appellate Court has stated that evaluating whether there has been sufficient parental rehabilitation the trial court must consider the full history of the respondent's parenting abilities:

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

In re Jennifer W., 75 Conn.App. 485, 499, 816 A.2d 697 (2003), cert. denied, 263 Conn. 917, 821 A.2d 770 (2003); see also In re Victoria B., 79 Conn.App. 245, 254, 829 A.2d 855 (2003). In an earlier decision, In re Tabitha P., 39 Conn.App. 353, 361, 664 A.2d 1168 (1995), the Appellate Court expressed this requirement as follows:

. . . Thus, the trial court's inquiry requires the determination of both the present and past status of the child, and obtaining a historical perspective of the respondent's child caring and parenting abilities . . .

See also In re Emerald C., 108 Conn.App. 839, 858-59 (2008), where the trial court considered the father's abandonment of older children in determining whether he would parent Emerald. As set forth above, since January 19, 2006, through her abandonment of the four children and voluntary transfer of custody to the maternal grandmother to be helped by a person on probation who had sexually molested the mother, the mother in this case has not had primary physical custody of such children. Also, on October 3, 2007, although DCF was not involved in such transfer, the mother abandoned her youngest child Luis by leaving him with his biological father. When the father became incarcerated DCF placed such child in foster care.

In a recent decision, the Appellate Court has expressed the trial court's duty to consider the "entire picture" of the parent-child relationship:

In order for the court to make a determination as to the respondent's prospects for rehabilitation, the court was required to obtain "a historical perspective of the respondent's child caring and parenting abilities." In re Tabitha P., 39 Conn.App. 353, 361, 664 A.2d 1168 (1995). "Because the parent-child relationship is at issue, all relevant facts and family history should be considered by the trial court when deciding whether to terminate the respondent's parental rights . . . The parent-child relationship presents an ongoing dynamic that cannot be frozen in time. The entire picture of that relationship must be considered whenever the termination of parental rights is under consideration by a judicial authority." In re Brianna F., 50 Conn.App. 805, 814, 719 A.2d 478 (1998). Finally, "[t]o preclude consideration of the facts existing at the time of [a prior termination of parental rights proceeding] would not allow for a comprehensive analysis of the parent-child relationship." Id., 818.

In re Anna Lee M., 104 Conn.App. 121, 123 (2007), cert. denied, 284 Conn. 939 (2007). In this case, the entire picture of the parent-child relationship includes inadequate supervision of and failure to supervise very young and dependent children, to have treated their serious medical issues, exposure to inappropriate adults and to illegal substances, inadequate or nonexistent food and clothing, and other lack of adequate parenting.

Additionally, this court cannot speculate about a parent's chances for future rehabilitation by assuming, for example, that a parent successfully would complete long-term individual and family or a new parenting program geared to the current ages of the children, or obtain independent housing in the future adequate for all of the children, or earn a legal income sufficient to support herself or herself and the children. In In re Selena O., 104 Conn.App. 635, 642-43 (2007), the trial court found that the mother could be rehabilitated within a reasonable period of time in the future based on predictions of what might occur many months in the future. The Appellate Court determined that the trial court's findings were based on facts that were not in evidence, and on a fact that did not exist. Id., 648-49. The trial court's findings were speculative, material to its decision and clearly erroneous. Id.

B. Ground H exception to the usual rule that in the adjudicatory phase, the judicial authority is limited to evidence of events occurring prior to the filing of the TPR petition, as amended, to be applied in the discretion of the trial court:

Connecticut Practice Book § 35a-7A, effective January 1, 2009, provides that

(a) In the adjudicatory phase, the judicial authority is limited to evidence of events preceding the filing of the petition or the latest amendment, except where the judicial authority must consider subsequent events as part of its determination as to the existence of a ground for termination of parental rights.

(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 In re Latifa K., 67 Conn.App. 742, 748-49, 789 A.2d 1024 (2002), the Appellate Court explained the language of Conn. Practice Book § 33-3(a), the predecessor of § 35a-7 and § 35a-7A, as follows:

". . A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition." (Internal quotation marks omitted.) In re Roshawn R., 51 Conn.App. 44, 52, 720 A.2d 1112 (1998). "In the adjudicatory phase of termination proceedings, the court determines the validity of the grounds alleged in the petition, and therefore is limited to events preceding the filing date of the petition. In the disposition phase, the court is concerned with what action should be taken in the best interests of the child, and in that phase the court is entitled to consider facts occurring until the end of the trial." In re Romance M., 30 Conn.App. 839, 859, 622 A.2d 1047 (1993), appeal dismissed, 229 Conn. 345, 641 A.2d 378 (1994).

Despite Practice Book § 33-3(a) and case law regarding termination proceedings generally, we have determined that with regard to termination petitions brought under § 17a-112(c)(3)(B) [now § 17a-112(j)(3)(B)], the trial court may, in the adjudicatory phase, properly consider facts and events that occur after the filing date of the petition in determining whether a respondent has achieved a sufficient degree of personal rehabilitation within the meaning of that statute. See In re Stanley D., 61 Conn.App. 224, 230, 763 A.2d 83 (2000). In In re Stanley D., we addressed a claim that the trial court improperly found that the respondent had not achieved sufficient personal rehabilitation within the meaning of § 17a-112(c)(3)(B). Id., 225, 763 A.2d 83. In our explanation of the requirements of § 17a-112(c)(3)(B) and the hearing process for petitions to terminate parental rights based on that section, we stated that "`[p]ersonal rehabilitation' refers to the reasonable foreseeability of the restoration of a parent to his or her former constructive and useful role as a parent, not merely the ability to manage his or her own life . . . In the adjudicatory phase, the court may rely on events occurring after the date of the filing of the petition to terminate parental rights when considering the issue of whether the degree of rehabilitation is sufficient to foresee that the parent may resume a useful role in the child's life within a reasonable time." (Citation omitted; emphasis in original.) Id., 230. The respondent, therefore, cannot prevail on his claim that the court could not consider whether he had achieved personal rehabilitation during the eighteen months subsequent to the filing of the petitions.

See also In re Anthony A., 112 Conn.App. 643, 649 (2009); In re Cheila R., 112 Conn.App. 582 (2009); In re Joseph L., 105 Conn.App. 515, 527-28 (2008); and In re Anthony H., supra, 104 Conn.App. at 757-58.

As set forth above, in Ground (B) cases, a court may consider events subsequent to the filing date of the petitions, but it does not have to do so:

. . . This court has expanded that rule [set forth in § 35a-7A] to allow courts to consider events subsequent to the filing date of the petitions in the adjudicatory phase of termination proceedings. "Practice Book § 33-3(a) [now § 35a-7A] limits the time period reviewable by the court in the adjudicatory phase to the events preceding the filing of the petition or the latest amendment . . . In the adjudicatory phase, the court may rely on events occurring after the date of the filing of the petition to terminate parental rights when considering the issue of whether the degree of rehabilitation is sufficient to foresee that the parent may resume a useful role in the child's life within a reasonable time." (Citations omitted; emphasis added; internal quotation marks omitted.) In re Stanley D., supra, 61 Conn.App. at 230; see In re Amber B., 56 Conn.App. 776, 785, 746 A.2d 222 (2000). The respondent's appeal challenges the evidence that a court must consider during the adjudicatory phase of the proceedings. The respondent argues that because this court has stated that trial courts may, in their discretion, consider such evidence, fundamental fairness requires the trial court to consider those events that take place up until the hearing. We do not agree with the respondent.

In re Jennifer W., supra, 75 Conn.App. at 494-95; see also In re Selena O., 104 Conn.App. 635, 646 (2007), and In re Nelmarie O., 97 Conn.App. 624, 628, 905 A.2d 706 (2006).

C. The relationship between a respondent's compliance with the "specific steps" and whether there is "sufficient rehabilitation":

General Statutes § 46b-129, pertaining to neglect and orders of temporary custody, contains three references to "specific steps." The first reference is in subsection (b):

. . . Upon issuance of an ex parte order, the court shall provide to the commissioner and the parent or guardian specific steps necessary for each to take to address the ex parte order for the parent or guardian to retain or regain custody of the child or youth . . .

The second reference is in subsection (d):

. . . The court, after a hearing pursuant to this subsection [relating to the preliminary hearing on the order of temporary custody or order to appear or the first hearing on a petition filed pursuant to § 46b-129(a) pertaining to neglect, uncared for or dependency petitions],

shall order specific steps the commissioner and the parent or guardian shall take for the parent or guardian to regain or to retain custody of the child or youth . . .

The third reference is in subsection (j) which provides that if a child is committed to DCF after being adjudicated neglected or uncared for "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."

Practice Book §§ 33a-6 and 33a-7 also contain similar references to the issuance of specific steps by the court at the time of the issuance of an ex parte order of temporary custody and at the preliminary hearing. Practice Book § 33a-6(d) provides:

. . . (d) Upon issuance of an ex parte order or order to appear, the judicial authority shall provide to the commissioner of the department of children and families and the respondent's specific steps necessary for each to take for the respondents to retain or regain custody of the child or youth . . .

Practice Book § 33a-7 provides:

(a) At the preliminary hearing on the order of temporary custody or order to appear, or at the first hearing on a petition for neglect, uncared for, dependency, or termination of parental rights, the judicial authority shall: . . . (8) make any interim orders, including visitation, that the judicial authority determines are in the best interests of the child or youth, and order specific steps the commissioner and the respondents shall take for the respondents to regain or to retain custody of the child or youth . . .

General Statutes § 17a-112(j)(3)(B), pertaining to termination of parental rights, provides in part with respect to specific steps:

The Superior Court, upon notice and hearing as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that . . . (3) . . . (B) the child (i) has been found by the Superior Court or the Probate Court to have been neglected or uncared for in a prior proceeding, or (ii) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . (Emphasis supplied.)

The official form for the petition for termination of parental rights utilized by DCF (JD-JM-40 Rev. 9-2006) separately sets forth Ground B(i) and Ground (B)(ii) bases for termination, so that DCF can select one, the other or both as a basis for termination. The official form does not include the italicized language in the Ground (B)(i) allegations. See In re Nicholas G., Docket No. D03-CPO7-002405-A, Superior Court for Juvenile Matters, Child Protection Session at Middletown (Bear, J., April 28, 2009), and page 27, supra.

The Supreme Court has emphasized the importance of compliance by each respondent with the specific steps:

. . . Although the present appeal does not concern a termination proceeding, we note that specific steps are considered to be "fair warning" to a parent of the potential termination of parental rights in subsequent proceedings. In re Jeffrey C., 64 Conn.App. 55, 62, 779 A.2d 765 (2001), rev'd on other grounds, 261 Conn. 189, 802 A.2d 772 (2002).

Indeed, the failure to comply with specific steps ordered by the court typically weighs heavily in a termination proceeding . . .

In re Devon B., 264 Conn. 572, 584 (2003). Such fair warning concept has also been expressed as follows:

General Statutes § 46b-129(j) . . . also contains an "explicit statutory requirement that a parent be given `specific steps' to accomplish to facilitate the return of the child"; In re Shyliesh H., 56 Conn.App. 167, 179, 743 A.2d 165 (1999); to the custody of the parent. "Personal rehabilitation, therefore, is to be determined, in part, by compliance with those specific steps, which give the parent fair warning of what is required"; id.; to be reunited with the child.

In re Justice V., 111 Conn.App. 500, 507, 959 A.2d 1063 (2008).

However, the Appellate Court has explained that successful completion of the specific steps, e.g., "petitioner's expressly articulated expectations," is, by itself, "not sufficient to defeat the petitioner's claim that the parent has not achieved sufficient rehabilitation. In re Vincent D., supra, 65 Conn.App. at 670, 783 A.2d 534." In re Jennifer W., supra, 75 Conn.App. at 500. In Vincent D., the Appellate Court explained:

In determining whether a parent has achieved sufficient personal rehabilitation, a court may consider whether the parent has corrected the factors that led to the initial commitment, regardless of whether those factors were included in specific expectations ordered by the court or imposed by the department . . . Accordingly, successful completion of expressly articulated expectations is not sufficient to defeat a department claim that the parent has not achieved sufficient rehabilitation . . .

In re Vincent D., 65 Conn.App. 658, 670, 783 A.2d 534 (2001) (citations omitted). See also In re Melody L., supra, 290 Conn. at 150-51.

In a recent decision in In re Cheila R., 112 Conn.App. 582, 591 (2009), the Appellate Court rejected claims by a mother that the requirements of the specific steps "placed unreasonable demands on her," overwhelmed her, caused her to make poor decisions and made it seem that she had abdicated her parental responsibility. The Appellate Court conflated the terms of the specific steps with the responsibilities of being a parent in language also applicable in this case:

. . . We disagree that there was insufficient evidence to support the courts findings by clear and convincing evidence that the respondent failed to achieve sufficient rehabilitation and that it is in the best interest of the child to terminate the respondent's parental rights. The respondent's claim demonstrates a lack of understanding of what it takes to be a parent. To be a protective, nurturing parent, one must be able to meet the needs of one's child, which are paramount, regardless of the needs of the parent. See General Statutes § 117a-112(j)(3)(B)(i); In re Alejandro L., 91 Conn.App. 248, 259-60, 881 A.2d 450 (2005) (critical issue is not whether parent has improved ability to manage own life but whether parent has gained ability to care for needs of child). The record demonstrates that the respondent, seventeen at the time she gave birth, has not come to terms with her need for mental health treatment and education, in addition to gaining employment, housing and parenting skills that any parent must possess to protect and nurture a child.

Id., 591-92.

D. Reasonable efforts by DCF to facilitate reunification:

With respect to reasonable efforts, in the context of General Statutes § 117a-112(j)(3) such phrase means DCF doing everything reasonable, and DCF is not required to provide every service that is possible. In re Melody L., 290 Conn. 131, 147, 962 A.2d 81 (2009). Given the mother's inability or unwillingness to participate consistently in some services, her refusal to participate in and avoidance of substance and alcohol abuse services, and the periods of the father's unavailability, DCF's reunification efforts including offers of services to each parent were reasonable, and with respect to the mother, substantial.

Reunification efforts generally consist of useful and relevant services for the training, education and treatment of each parent and for each of the children. Such services that are offered are based on the needs and issues that have led to the removal of the children and/or the filing of neglect petitions. In this case the primary parental issues were unadmitted substance/alcohol abuse, mental health issues, cognitive limitation, inadequate parenting, and lack of parenting skills. The children suffered from medical issues and had special needs.

Usual rehabilitative services may include individual, group and family therapy and/or counseling, parenting classes, supervised visitation including a parenting component, anger management classes, substance and alcohol abuse evaluation and treatment, domestic violence victim services, housing assistance, intensive in-home services, home aides, education, court-ordered evaluations, necessary medical care including psychiatric services, and administrative and case management services.

Foster care can include "regular," therapeutic or professional foster homes. In In the Interest of Cameron W., 2006 Ct.Sup. 2805, 2833, No. M08-CP05-009919-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Wilson, J., March 13, 2007), the trial court summarized Appellate Court decisions where DCF efforts have been found to be reasonable:

In finding that DCF made reasonable efforts, the courts have given careful consideration of the circumstances of each individual case. See, e.g. In re Destiny D., 86 Conn.App. 77, 83-84, 859 A.2d 793, cert. denied, 272 Conn. 911 (2004) (department provided regular visitation, rehabilitative services, counseling and therapy for children[;] respondents performance in rehabilitative programs was disappointing, including erratic attendance, resistance to treatment recommendations, and positive drug tests; respondent also failed to sign releases for a period of time, so department unable to make additional referrals); In re Jonathan C., 86 Conn.App. 169, 180, 860 A.2d 305 (2004) (department provided numerous referrals for services, facilitated visitation, and provided therapy for both respondent and children); In re Sheila J., 62 Conn.App. 470, 479, 771 A.2d 244 (2001) (department offered respondent services over several years, including substance abuse evaluation and treatment, parenting skills classes, domestic violence counseling, a family reunification program, a psychological evaluation, and visitation; but she failed to avail herself of or participate meaningfully in those services by failing to attend many visits, and denying the fact that she needed to participate in counseling); In re Daniel C., supra, 63 Conn.App. 362-63 (respondents participated in services but continually relapsed and resumed abusing substances and alcohol, so department declined to pursue goal of reunification after children were removed . . ." ["On the basis of our conclusion that the department engaged in reasonable efforts to reunify this family, it was proper for the department to decline to pursue reunification after the children were removed . . ."]); In re Ebony K., supra, 68 Conn.App. 350 (respondent's inability to overcome drug addiction and failure to comply with services "thwarted the department's efforts to reunify her and the child.")

If a parent is resistant to, uninterested in, uncooperative with services, residing out of state, or unable to benefit from services, then the efforts that DCF will be able to make inevitably will be less in scope than those made for a parent who is compliant, interested, cooperative, able to benefit and residing in Connecticut. Though different in amount and scope, each set of efforts can be reasonable under the circumstances. And if a parent does not believe that he or she needs any services, or if the services will not benefit a parent, e. g., because of severe cognitive limitation, then DCF's decision to make no efforts may be reasonable. See In re Vincent B., 73 Conn.App. 637, 644, 809 A.2d 1119 (2002), cert. denied, 262 Conn. 934, 815 a.2d 136 (2003). See also In re Antony B., 54 Conn.App. 463, 476, 735 A.2d 893 (1999):

The department is required only to make "reasonable efforts." It is axiomatic that the law does not require a useless and futile act. See Connecticut Light Power Co. v. Costello, 161 Conn. 430, 441, 288 A.2d 415 (1971).

Although DCF is required to do "everything reasonable" in its reunification efforts, DCF need not be perfect in its efforts to provide reunification services for a court to find that it has made reasonable efforts. See In re Melody L., supra, 290 Conn. at 147:

We conclude that the trial court's finding that the department made reasonable efforts at reunification was not clearly erroneous. Even if the evidence had established that additional family therapy might have been beneficial, such evidence does not render the trial court's finding clearly erroneous. As we previously have noted herein, "[r]easonable efforts means doing everything reasonable, not everything possible." (Internal quotation marks omitted.) In re Destiny D., 86 Conn.App. 77, 82, 859 A.2d 973, cert. denied, 272 Conn. 911, 863 A.2d 702 (2004). The Appellate Court properly has affirmed findings that the department made reasonable efforts for reunification in cases in which the department's efforts were far less comprehensive than those in the present case. See In re Alexander F., 81 Conn.App. 668, 673, 841 A.2d 274 ("[i]n light of the entire record, the failure to provide the referral, while a lapse, does not make the overall efforts of the department fall below the level of what is reasonable"), cert. denied, 268 Conn. 924, 848 A.2d 472 (2004); In re Ebony H., 68 Conn.App. 342, 350, 789 A.2d 1158 (2002) ("[notwithstanding the court's finding that the department's response to the [respondent mother's] request for assistance in obtaining housing was shameful and unacceptable, our review of the evidence admitted at the trial does not leave us with a definite and firm conviction that the court mistakenly found that the department had made reasonable efforts to reunify the respondent and the child").

3. The best interest of the child requirements:

As set forth above, the court first determines whether DCF has proved, by clear and convincing evidence, one of the grounds alleged in its TPR petitions. In this case, the ground alleged against both the mother and the father is Ground B, failure to rehabilitate.¹¹ The court looks separately at the proof as to Ground B against the mother and the father. The court also considers whether each parent has rehabilitated sufficiently adequately to parent any or all of the children.

11 DCF has also alleged against the father Grounds A, abandonment, and D, no parent-child relationship. This court has discussed the Connecticut law relevant to abandonment and no parent-child relationship in In re Inayiris P., 2009 Ct.Sup. 6746, 6760-63, 6775-77, No. H12-CP07-011254-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Bear, J., April 14, 2009).

If the court finds that DCF has proved Ground B concerning one or more of the children, before the court can terminate parental rights, it must find, by clear and convincing evidence, that to do so is in the best interest of such child:

After determining whether one of the statutory grounds for termination of parental rights under General Statutes § 17a-112(j) exists by clear and convincing evidence, a judge is required to evaluate whether severing the legal tie between parent and child is in the child's best interest. That task is among the most sensitive and difficult with which a judge is charged. Although a judge is guided by legal principles, the ultimate decision to terminate parental rights is intensely human. It is the judge in the courtroom who looks the witnesses in the eye, interprets their body language, listens to the inflections in their voices and otherwise assesses the subtleties that are not conveyed in the cold transcript.

In re Davonta V., supra, 98 Conn.App. at 42, 43.

As has been set forth above:

A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition . . . In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights [under § 17a-112(j)] exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child.

In re Brea B., 75 Conn.App. 466, 469-70, 816 A.2d 707 (2003) (internal quotation marks omitted). See also In re Melody L., supra, 290 Conn. at 163; In re Selena O., supra, 104 Conn.App. at 643 n. 8; In re Shaun B., supra, 97 Conn.App. at 206-07.

The difference in focus between adjudication and disposition has been explained as follows:

In the dispositional phase of a termination of parental rights hearing, "the emphasis appropriately shifts from the conduct of the parent to the best interest of the child." In re Romance M., 229 Conn. 345, 356-57, 641 A.2d 378 (1994). During this dispositional phase, "the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent's parental rights is not in the best interest of the child. In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in § 17a-112[k]." In re Tabitha P., 39 Conn.App. 353, 361-62, 664 A.2d 1168 (1995). We note that those "seven factors serve simply as guidelines for the court and are not statutory prerequisites that need to be proven before termination can be ordered . . . There is no requirement that each factor be proven by clear and convincing evidence." (Citation omitted.) In re Victoria B., 79 Conn.App. 245, 261, 829 A.2d 855 (2003).

In re Davonta V., supra, 98 Conn.App. at 46-47 (footnote omitted). See also In re Janazia, 112 Conn.App. 69, 98 (2009).

The seven required statutory findings¹² are not specified in General Statutes § 17a-112(k) as the only parameters for determining the best interest of the child in a TPR context. Instead, the focus of many of such required statutory findings is to insure that the parents' rights and interests appropriately and properly have been considered.

12 The seven required findings set forth in General Statutes § 17a-112(k) are as follows:

Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended; (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (4) the feelings and emotional ties of the child with respect to the child's parents, any guardian of such child's person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (5) the age of the child; (6) the efforts the parent has made to adjust such parent's circumstances, conduct, or conditions to make it in the best interest of the child to return such child home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions, and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.

The Appellate Court recently has set forth the best interest standards of the child in a TPR context as including ". . . the child'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, 926 A.2d 690 (2007); see also In re Janazia, supra, 112 Conn.App. at 97; In re Cameron C., 103 Conn.App. 746, 759, 930 A.2d 826 (2007), cert. denied, 285 Conn. 906 (2008), and In re Brianna C., supra, 98 Conn.App. at 804.¹³ Continuity and stability of environment are elements of permanency. The Appellate Court stated that in making such best interests determination, the trial court should "consider and make" the required written General Statutes § 17a-112(k) findings:

13 The trial court's judgment based on the reliable evidence is entitled to "great weight." See In re Antony A., 112 Conn.App. 643, CT Page 8508 653-54 (2009):

We begin with the standard of review. "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 its environment . . . We have stated that when making the determination of what is in the best interest of the child, [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 . . . In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did . . . [G]reat weight is given to the judgment of the trial court because of [the court's] opportunity to observe the parties and the evidence . . . [Appellate courts] are not in a position to second-guess the opinions of witnesses, professional or otherwise, nor the observations and conclusions of the [trial court] when they are based on reliable evidence." (Citations omitted; internal quotation marks omitted.) In re Karl J., 110 Conn.App. 22, 26, 954 A.2d 231, cert. denied, 289 Conn. 954, 961 A.2d 420 (2008).

The respondent and R. both claim that the court improperly concluded, in the dispositional phase of the hearing, that it was in the child's best interest to terminate the parental rights of the respondent with respect to R. We disagree.

"The best interests of the child include the child's interests in sustained growth, development, well-being, and continuity and stability of its environment." (Internal quotation marks omitted.) In re Shyina B., 58 Conn.App. 159, 167, 752 A.2d 1139 (2000). "In the dispositional phase of a termination of parental rights hearing, the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent's parental rights is not in the best interest of the child. In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in [ § 17a-112(k)]." (Internal quotation marks omitted.) In re Jermaine S., supra, 86 Conn.App. 835. The court thoroughly considered each of the seven criteria before finding that the respondent's failure to address her long-term history of substance abuse and domestic violence issues dictated that it would be in R.'s best interest to terminate her parental rights.

In re Ryan P., supra, 102 Conn.App. at 625-27. See also In re Joseph L., 105 Conn.App. 515, 529-30 (2008); In re Anthony H., supra, 104 Conn.App. at 764 (2007); and In re Cameron C., supra, 103 Conn.App. at 760.

Although the focus in the dispositional phase "appropriately shifts from the conduct of the parent to the best interest of the child . . ." In re Romance M., supra, the sixth required finding in § 17a-112(k) is to consider

. . . the efforts the parent has made to adjust such parent's circumstances, conduct, or conditions to make it in the best interest of the child to return such child home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions, and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child . . .

As set forth above, the focus of many of the other required § 17a-112(k) findings also is to insure that the parents' rights and interests appropriately and properly have been considered.

Additionally, although "the best interest of the child" is referred to as a dispositional focus, the concept also appears in one of the adjudicatory grounds, Ground D, General Statutes § 17a-112(j)(3)(D), no parent-child relationship:

there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day-to-day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child . . .

Also, General Statutes § 17a-112(q) provides that the "provisions of this section shall be liberally construed in the best interest of any child for whom a petition under this section has been filed." The seven adjudicatory grounds in General Statutes § 17a-112(j) are part of "the provisions of this section," e.g., § 17a-112.

4. DCF as statutory parent:

In performing its duties with respect to a TPR trial, this court's responsibility does not include where or with whom a child should live after a termination of parental rights, and thus this court should not enter orders concerning such matters as part of any TPR case disposition:

In the dispositional phase of a termination proceeding, the court properly considers only whether the parent's parental rights should be terminated, not where or with whom a child should reside following termination.

In re Sheena I., 63 Conn.App. 713, 726, 778 A.2d 997 (2001); see also In re Davonta V., supra, 98 Conn.App. at 53. There are several statutes providing or referring to DCF as statutory parent after TPR has occurred. For example, General Statutes § 17a-93 provides:

As used in sections 17a-90 to 17a-124, inclusive, and 17a-152: . . . (f) `Statutory parent' means the Commissioner of Children and Families or that child-placing agency appointed by the court for the purpose of giving a minor child or minor children in adoption . . .

General Statutes § 17-122(m):

. . . The Superior Court may appoint a statutory parent at any time after it has terminated parental rights if the petitioner so requests.

In its TPR petitions, DCF has requested that it be appointed as statutory parent.¹⁴

14 See also, e.g., General Statutes § 45a-707(7), and see General Statutes § 17a-146:

. . . the Commissioner of Children and Families shall exercise and have all authority, rights, duties and functions granted to or imposed upon the Commissioner of Social Services in the general statutes in the area of adoption of children, including, but not limited to, authority . . . to act as a statutory parent, as defined in section 45a-707.

General Statutes § 17a-112(o) provides:

In the case where termination of parental rights is granted, the guardian of the person or statutory parent shall report to the court within thirty days of the date judgment is entered on a case plan, as defined by the federal Adoption Assistance and Child Welfare Act of 1980, for the child which shall include measurable objectives and time schedules. At least every three months thereafter, such guardian or statutory parent shall make a report to the court on the progress made on implementation of the plan . . . If the court determines that the department has not made reasonable efforts to place a child in an adoptive placement or that reasonable efforts have not resulted in the placement of the child, the court may order the Department of Children and Families, within available appropriations, to contract with a child-placing agency to arrange for the adoption of the child. The department, as statutory parent, shall continue to provide care and services for the child while a child-placing agency is arranging for the adoption of the child.

5. Closure, stability, health, safety, continuity, stability and permanency for the child:

In determining the best interest of a child in a TPR context, see In re Ryan R., supra, 102 Conn.App. at 625-27, the court also considers and applies, inter alia, the concepts of closure and permanency:

It is abundantly clear that the court gave careful consideration to the concepts of closure and permanency and did not simply use those terms as empty incantations."

In re Davonta V., supra, 98 Conn.App. at 53. The Appellate Court also referred to stability and permanency concepts in Alejandro L.:

In its decision, the court found by clear and convincing evidence that the children's best interests would be served by granting the petitions to terminate the respondent's parental rights. In support of that finding, the court noted that much of the children's short lives had been spent in the custody of the commissioner, and that the children needed stability and permanency in their lives. On the basis of those facts, we conclude that the court's determination that the respondent's parental rights should be terminated was not clearly erroneous.

In re Alejandro L., supra, 91 Conn.App. at 262.

In the neglect context, the Supreme Court referred to the "dual goals of safety and permanency." In re Allison G., supra, 276 Conn. at 159.

Helping children achieve permanency has long been a goal of the federal government, see, e. g., 42 U.S.C. §§ 621, 622, 629g, 629h, 670, 671, 673b, 673c, 675 and 5113, and of the General Assembly, see, e.g., General Statutes § 46b-129(k):

CT Page 8488

. . . (2) At a permanency hearing held in accordance with the provisions of subdivision (1) of this subsection, the court shall approve a permanency plan that is in the best interests of the child or youth and takes into consideration the child's or youth's need for permanency. The child's or youth's health and safety shall be of paramount concern in formulating such plan . . .

See also General Statutes §§ 17a-110a, 17a-111b and 17a-112(o). Thus, closure and stability for a child, the health and safety of a child, and continuity and stability of environment, see In re Anthony A., supra, 112 Conn.App. at 653-54, are concepts relating to permanency for the child. If parents do not rehabilitate within a reasonable time given the age and needs of the children, the federal and state legal requirement of permanency dictates that termination of parental rights should occur.

6. The standard of clear and convincing evidence:

In Miller v. Commissioner of Corrections, 242 Conn. 745, 794-95 (1997), Justice Borden explained such clear and convincing standard of proof:

The clear and convincing standard of proof is substantially greater than the usual civil standard of a preponderance of the evidence, but less than the highest legal standard of proof beyond a reasonable doubt. It "is sustained if the evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist." (Emphasis added; internal quotation marks omitted,) State v. Bonello, 210 Conn. 51, 66, 554 A.2d 277, cert. denied, 490 U.S. 1082, 109 S.Ct. 2103, 104 L.Ed.2d 664 (1989).

Although we have characterized this standard of proof as a "middle tier standard"; J. Frederick Scholes Agency v. Mitchell, 191 Conn. 353, 358, 464 A.2d 795 (1983); and as "an intermediate standard"; State v. Davis, supra, 229 Conn. 293; between the ordinary civil standard of a preponderance of the evidence, or more probably than not, and the criminal standard of proof beyond a reasonable doubt, this characterization does not mean that the clear and convincing standard is necessarily to be understood as lying equidistant between the two. Its emphasis on the high probability and the substantial greatness of the probability of the truth of the facts asserted indicates that it is a very demanding standard and should be understood as such . . . We have stated that the clear and convincing evidence standard "should operate as a weighty caution upon the minds of all judges, and it forbids relief whenever the evidence is loose, equivocal or contradictor." (Internal quotation marks omitted.) Lopinto v. Haines, 185 Conn. 527, 539, 441 A.2d 151 (1981) . . .

(Footnotes omitted.)

See also In re Cheyenne A., supra, 59 Conn.App. at 158-59; Notopoulos v. Statewide Grievance Committee, 277 Conn. 218, 226, 890 A.2d 509 (2006); In re Anthony H., supra, 104 Conn.App. at 756 (2007); Eberhardt v. Imperial Construction Serv., 101 Conn.App. 762, 923 A.2d 785 (2007); and Chernick v. Johnston, 100 Conn.App. 276, 280, 917 A.2d 1042 (2007), cert. denied, 282 Conn. 919, 925 A.2d 1101 (2007).

7. The construction of General Statutes § 17a-112:

As set forth above, General Statutes § 17a-112(q) provides that the "provisions of this section shall be liberally construed in the best interest of any child for whom a petition under this section has been filed."

However, "[f]amily reunification is an important social objective. As our Supreme Court recently has reminded us: `[A]n important goal of the child protection statutes, in addition to protecting children from abuse and neglect, is to preserve family integrity by . . . teaching parents the skills they need to nurture and care for their children.' Teresa T. v. Ragaglia, 272 Conn. 734, 754, 865 A.2d 428 (2005)." In re Christina M., 90 Conn.App. 565, 570-71, 877 A.2d 941 (2005), affirmed, 280 Conn. 474 (2006).

8. Weight to be given to testimony, including from court-appointed psychologists and other experts:

In Davonta V., supra, 285 Conn. at 488-89, the Supreme Court set forth the standards to be applied by the court in considering witness testimony, including but not limited to the testimony of child welfare professionals, which testimony has an important role in neglect and TPR trials:

Parental termination litigation, including the present case, often involves testimony from various child welfare professionals. "The testimony of professionals is given great weight in parental termination proceedings . . . It is well established that [i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony . . . The credibility and the weight of expert testimony is judged by the same standard, and the trial court is privileged to adopt whatever testimony [it] reasonably believes to be credible . . . On appeal, we do not retry the facts or pass on the credibility of witnesses . . . It is the quintessential function of the fact finder to reject or accept certain evidence, and to believe or disbelieve any expert testimony . . . The trier may accept or reject, in whole or in part, the testimony of an expert offered by one party or the other." (Citations omitted; internal quotation marks omitted.) In re Carissa K., 55 Conn.App. 768, 781-82, 740 A.2d 896 (1999) . . .

In In re Melody L., supra, 290 Conn. at 161, the Supreme Court stated that a trial court can give credence to the testimony of an expert witness even on "the ultimate issue" to be decided by the trial court:

This court repeatedly has held that, "[e]xperts can . . . sometimes give an opinion on an ultimate issue where the trier, in order to make intelligent findings, needs expert assistance on the precise question on which it must pass." (Internal quotation marks omitted.) State v. Vilalastra, 207 Conn. 35, 41, 540 A.2d 42 (1988), cert. denied, 349 U.S. 926, 75 S.Ct. 775, 99 L.Ed. 1257 (1955). This understanding has been codified in § 7-3(a) of the Connecticut Code of Evidence, which provides in relevant part that "[t]estimony in the form of an opinion is inadmissible if it embraces an ultimate issue to be decided by the trier of fact, except that . . . an expert witness may give an opinion that embraces an ultimate issue where the trier of fact needs expert assistance in deciding the issue."

As the Appellate Court aptly has recognized, "[t]he trial court's exercise of discretion in admitting expert testimony is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law . . . Furthermore, [c]ourts are entitled to give great weight to professionals in parental termination cases." (Citation omitted; internal quotation marks omitted.) In re Tabitha P., 39 Conn.App. 353, 364-65 n. 8, 664 A.2d 1168 (1995); id. (concluding that trial court had not abused its discretion in admitting into evidence testimony of court-appointed evaluator's conclusions where there was no evidence that court failed to consider any other evidence in rendering its decision).

With respect to the trial court's responsibilities concerning the best interest of a child, the Supreme Court emphasized that after considering expert testimony, such court ". . . must make its own independent determination as to the best interest of the child . . ."

Nevertheless, although the trial court may rely on expert testimony, it ultimately must make its own independent determination as to the best interest of the child. In re Jeisean M., 270 Conn. 382, 398, 852 A.2d 643 (2004) ("[a]lthough we often consider the testimony of mental health experts . . . such expert testimony is not a precondition of the court's own factual judgment as to the child's best interest" [citations omitted; internal quotation marks omitted]). In sum, we must defer to both the trial court's weighing of the expert testimony presented and the trial court's independent factual determination as to what was in Davonta's best interest.

In re Davonta V., supra, 285 Conn. at 489.

The Supreme Court also has set forth the parameters for a trial court's use of expert testimony in a family case:

As in other areas where expert testimony is offered, a trial court is free to rely on whatever parts of an expert's opinion the court finds probative and helpful . . . In family cases in particular, it would be anomalous to require a trial court to assign particular weight to a report which is based on statements that the trial court may evaluate differently and on circumstances that may have changed.

Yontef v. Yontef, 185 Conn. 275, 281-82, 440 A.2d 899 (1981).

The trial court in whole or in part need not accept a person's testimony, whether or not such person has been qualified as an expert:

The law traditionally recognizes the trial court as a tribunal equipped to resolve disputed evidentiary issues, and as the "final judge of credibility." Clark v. Haggard, 141 Conn. 668, 674, 109 A.2d 358 (1954). Moreover, as we have often noted, the fact that a witness testifies as an expert does not compel the acceptance of his or her testimony as true. See, e.g., Aspiazu v. Orgera, 205 Conn. 623, 634, 535 A.2d 338 (1987).

State v. Joly, 219 Conn. 234, 237, 243, 593 A.2d 96 (1991). The Supreme Court stated that factual determinations are ". . . appropriately committed to the sound discretion of the trial court." Id. In Joly, the issue was whether a witness had been hypnotized. Id. The Supreme Court then stated:

. . . In resolving this issue, the court may be aided, but is not bound, by expert opinion. Id. Such testimony must be "considered, weighed and tested like any other evidence"; id.; and assessed "in relation to the other circumstances in evidence bearing on the question in issue"; Blake v. Blake, 207 Conn. 217, 225, 541 A.2d 1201 (1988); including, if offered, the testimony of the allegedly hypnotized witness. The trial court "is privileged to adopt whatever testimony [it] reasonably believes to be credible"; (emphasis in original) Eichman v. JJ Building Co., 216 Conn. 443, 451-52, 582 A.2d 182 (1990); and expert testimony may be rejected in favor of other evidence found more persuasive. Transportation Plaza Associates v. Powers, 203 Conn. 364, 377, 525 A.2d 68 (1987).

In In re David W., 254 Conn. 676, 687-88, 759 A.2d 89 (2000), the Supreme Court emphasized deference to the trial court's discretion in determining the weight to be given to all or part of an expert's testimony:

Previously, we held that "[t]he credibility of expert witnesses and the weight to be accorded their testimony are within the province of the trier of facts, who is privileged to adopt whatever testimony he reasonably believes to be credible." (Internal quotation marks omitted.) Transportation Plaza Associates v. Powers, 203 Conn. 364, 378, 525 A.2d 68 (1987). Furthermore, it is well settled that the trial court possesses discretion in ruling, not only on the qualifications of expert witnesses, but on the admissibility and weight of their opinions and testimony. State v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387 (1986). "As the witness qualified as an expert, any objection to his testimony would go to its weight rather than to its admissibility." (Emphasis added; internal quotation marks omitted.) State v. Avila, 166 Conn. 569, 576, 353 A.2d 776 (1974). "It is rare for this court to find that a trial court has erred in a ruling permitting expert testimony." State v. John, 210 Conn. 652, 677, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S.Ct. 84, 107 L.Ed.2d 50 (1989) . . .

In summary, it is the function of each trial court to determine the credibility of each witness in the process of weighing and interpreting the evidence before it. State v. Richards, 113 Conn.App. 823, 832 (2009).

9. The balancing of the legitimate interests of the parents, children and the state of Connecticut:

Each termination of parental rights case requires consideration of the interests of all parties, but as set forth above, in the dispositional phase the statutory standards require a focus on the best interests of the child, not the primary wishes or best interests of the parents. Nevertheless:

The desire and right of a parent to maintain a familial relationship with a child cannot be separated from the desire and best interest of a child either to maintain or to abandon that relationship, or the interest of the state in safeguarding the welfare of children. The legitimate interests of parent, child and state require a balancing of the factors involved in those interests . . . In every case involving parental rights, a struggle exists between parents and the state to determine what is in the child's best interest, the child being the focus of the struggle . . .

(Citations omitted.) In re Shaquanna M., 61 Conn.App. 592, 598-99, 767 A.2d 155 (2001).

Since Meyer v. Nebraska, 262 U.S. 390, 399, 401-03, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), the United States Supreme Court has recognized the fundamental liberty interest of parents in the custody, care and control of their children. Most recently in Fish v. Fish, supra, Justice Katz's dissenting opinion, the line of Supreme Court cases, beginning with Meyer, in which this fundamental liberty interest is recognized, has been set forth:

The Supreme Court's decisions recognizing this fundamental right date back to at least 1923. See Meyer v. Nebraska, 262 U.S. 390, 399, 401-03, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (concluding that "proficiency in foreign language . . . is not injurious to the health, morals or understanding of the ordinary child" and recognizing right of parents to "establish a home and bring up children" and to "control the education of their own"); Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (holding that state could not interfere with parents' decision to send children to private schools when decision was "not inherently harmful" and recognizing right "to direct the upbringing and education of children under their control"); Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (exempting Amish from state compulsory education law requiring children to attend public school until age eighteen, recognizing that "primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition"); see also Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944) ("[i]t is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder"); Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) ("[i]t is plain that the interest of a parent in the companionship, care, custody, and management of his or her children `come[s] to this [c]ourt with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements'"); Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978) ("[w]e have recognized on numerous occasions that the relationship between parent and child is constitutionally protected"); Parham v. J.R., 442 U.S. 584, 602, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979) ("Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course."); Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (discussing "[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child"); Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) ("[i]n a long line of cases, we have held that, in addition to the specific freedoms protected by the [b]ill of [r]ights, the `liberty' specially protected by the [d]ue [p]rocess [c]lause includes the righ[t] . . . to direct the education and upbringing of one's children" [citations omitted]).

Fish v. Fish, supra, 285 Conn. at 93 n. 3 (Katz, J., dissenting).

In Parham, the United States Supreme Court recognized that parents, who have traditional interests in and responsibility for the upbringing of their child, retain a substantial, if not the dominant, role in decisions for their child(ren), absent a finding of neglect or abuse as has occurred in this case:

Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course; our constitutional system long ago rejected any notion that a child is "the mere creature of the State" and, on the contrary, asserted that parents generally "have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations." Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925). See also Wisconsin v. Yoder, 406 U.S. 205, 213 (1972); Prince v. Massachusetts, 321 U.S. 158, 166 (1944); Meyer v. Nebraska, 262 U.S. 390, 400 (1923). Surely, this includes a "high duty" to recognize symptoms of illness and to seek and follow medical advice. The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children. 1 W. Blackstone, Commentaries; 2 J. Kent, Commentaries on American Law.

As with so many other legal presumptions, experience and reality may rebut what the law accepts as a starting point; the incidence of child neglect and abuse cases attests to this. That some parents "may at times be acting against the interests of their children" as was stated in Bartley v. Kremens, 402 F.Sup. 1039, 1047-48 (E.D.Pa. 1975), vacated and remanded, 431 U.S. 119 (1977), creates a basis for caution, but is hardly a reason to discard wholesale those pages of human experience that teach that parents generally do act in the child's best interests. See Rolfe MacClintock 348-49. The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.

Nonetheless, we have recognized that a state is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized. See Wisconsin v. Yoder, supra, at 230; Prince v. Massachusetts, supra, at 166 . . .

Parham v. J.R., supra, 442 U.S. at 602-03.

In his concurring opinion, Justice Stewart rejected the idea that all parents act in the best interests of their children and that all parents are fit parents:

To be sure, the presumption that a parent is acting in the best interests of his child must be a rebuttable one, since certainly not all parents are actuated by the unselfish motive the law presumes. Some parents are simply unfit parents. But Georgia clearly provides that an unfit parent can be stripped of his parental authority under laws dealing with neglect and abuse of children.

Id., 624 (Stewart, J., concurring).

In footnote 7, Justice Stewart referred to Justice Brennan's concurring and dissenting opinion which contained the following:

In our society, parental rights are limited by the legitimate rights and interests of their children. "Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves." Prince v. Massachusetts, 321 U.S. 158, 170 (1944). This principle is reflected in the variety of statutes and cases that authorize state intervention on behalf of neglected or abused children and that, inter alia, curtail parental authority to alienate their children's property, to withhold necessary medical treatment, and to deny children exposure to ideas and experiences they may later need as independent and autonomous adults.

This principle is also reflected in constitutional jurisprudence. Notions of parental authority and family autonomy cannot stand as absolute and invariable barriers to the assertion of constitutional rights by children . . .

Id., 630-31 (Brennan, J., concurring in part and dissenting in part).

Connecticut also balances the constitutional rights of parents against the duty and responsibility of the state to insure the health, safety and welfare of children. See, e. g., In re Stephen M., 109 Conn.App. 644, 646 (2008):

To facilitate the state's parens patriae interest, the legislature has enacted a comprehensive scheme to protect children who are at risk due to their parents' inability or failure to provide for their well-being. See General Statutes § 17a-101; In re T.K., 105 Conn.App. 502, 503-04, 939 A.2d 9, cert. denied, 286 Conn. 914, 945 A.2d 976 (2008). The statutory scheme takes into consideration, however, the fundamental precept that "[p]arents have a constitutionally protected right to raise and care for their own children." In re Juvenile Appeal (83-DE), 190 Conn. 310, 318-19, 460 A.2d 1277 (1983) . . .

and In re Juvenile Appeal (83-DE), 190 Conn. 310, 318-19, 460 A.2d 1277 (1983):

. . . Parents have a constitutionally protected right to raise and care for their own children. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). This right is not free from intervention by the state, however, when the continuing parens patriae interest of the state in the well being of children is deemed by law to supercede parental interests. See General Statutes 17-43a, 46b-129(e); In re Juvenile Appeal (83-BC), 189 Conn. 66, 77, 454 A.2d 1262 (1983); Anonymous v. Norton, 168 Conn. 421, 430, 362 A.2d 532, cert. denied, 423 U.S. 935, 96 S.Ct. 294, 46 L.Ed.2d 268 (1975).

In an earlier decision, In re Juvenile Appeal (83-CD), 189 Conn. 276, 282-84, 293, 455 A.2d 1313 (1983), the Supreme Court rejected a respondent parent's argument that General Statutes § 46b-129(b) was unconstitutional because it was an impermissible infringement on such parent's right to family integrity. Recently in Fish v. Fish, 285 Conn. 24, 73-74, 939 A.2d 1040 (2008), the Supreme Court balanced parents' constitutional liberty interests against a child's welfare and safety to apply the regular civil fair preponderance standard of proof in third party custody proceedings:

. . . 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).

Accordingly, although we agree with the concurrence that the interest of the parent is extremely significant and may require additional protection by imposing a heightened standard of proof in other circumstances, there is well established precedent for applying the fair preponderance standard in third party custody proceedings.

This is a case where each of the children was removed from the custody of the mother and the father on January 19, 2006, under a ninety-six-hour hold after while the father was incarcerated and the mother had abandoned the children to travel out of state. On January 23, 2006, the court granted DCF temporary custody of the children and such orders were sustained on January 27, 2006. Previously on June 22, 2005, each of the children except Evelyn, ¹⁵ who was born in July 2005 had been adjudicated neglected and committed to the care, custody and guardianship of DCF, which commitments remained in effect through and after the end of the TPR trial. Beginning on January 19, 2006, and for approximately forty months thereafter to date, the family has not been an intact family. The parents thus do not have the benefit of any presumption that they are fit to care for such children. Compare Roth v. Weston, 259 Conn. 202, 216, 789 A.2d 431 (2002). See also Dutkiewicz v. Dutkiewicz, 289 Conn. 362, 378 n. 11 (2008):

15 On April 6, 2006, Evelyn was adjudicated neglected and committed to DCF.

As we noted in Roth, "[t]here are . . . limitations on these parental rights. Some of these limitations arise out of an appreciation of the state's long recognized interests as parens patriae. See Reno v. Flores, 507 U.S. 292, 303-04, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993); Santosky v. Kramer, 455 U.S. 745, 766, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Parham v. J.R., 442 U.S. 584, 605, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944); see also General Statutes § 10-204a (requiring parents to immunize children prior to school enrollment); General Statutes §§ 14-100a, 14-272a (requiring child restraint in vehicles); General Statutes § 17a-81 (authorizing emergency medical treatment where parent withholds consent); General Statutes §§ 31-23, 31-24 (restricting child labor from certain occupations or workplaces); General Statutes § 53-21a (prohibiting parents from leaving-child unsupervised in public accommodation or vehicle). Furthermore, it is unquestionable that in the face of allegations that parents are unfit, the state may intrude upon a family's integrity. Parham v. J.P., supra, 603; see General Statutes § 17a-101g (removal of child where imminent risk of harm); General Statutes §§ 17a-112(j), 45a-717 (termination of parental rights)." Roth v. Weston, supra, 259 Conn. 224.

Former Chief Justice Peters has noted:

Cases involving the termination of parental rights are always difficult . . . Accordingly, the court sought the proper balance between the parents' constitutionally protected interest in the care, custody and control of their children, and the interest of the state, acting as parens patriae, to protect the children's health and safety.

In re Christina M., supra, 90 Conn.App. at 566-67. That proper balance is the standard for the court in this case.

WITH RESPECT TO THE MOTHER AND TILE FATHER OF VICENTE, ANTHONY, JOSELIANN AND EVELYN, DCF HAS PROVED, BY CLEAR AND CONVINCING EVIDENCE, THE GROUND B ALLEGATIONS OF SUCH PETITIONS.

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) there is no other action pending in any other court affecting custody of Vicente, Anthony, Joseliann and Evelyn 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 June 22, 2005, Vicente, Anthony, Joseliann were adjudicated neglected, on April 6, 2006, Evelyn was adjudicated neglected and each was committed to the care, custody and guardianship of DCF;

(4) the mother of Vicente, Anthony, Joseliann and Evelyn, who were adjudicated neglected, is unable or is unwilling to and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the ages and needs of Vicente, Anthony, Joseliann and Evelyn as of the date of the filing of the TPR petitions or as of May 7, 2009, the last date of the TPR hearing, she could assume a responsible position in the lives of Vicente, Anthony, Joseliann and Evelyn as their day-to-day full-time parent;

(5) prior to and after filing its March 20, 2008, termination petitions, DCF made reasonable efforts to reunify the mother with Vicente, Anthony, Joseliann and Evelyn through offers of and provision of services, but the mother was not able to reach a point after the adjudications of neglect where reunification with her was in the best interest of Vicente, Anthony, Joseliann and Evelyn;

(6) the father of Vicente, Anthony, Joseliann and Evelyn, who were adjudicated neglected, is unable or is unwilling to and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the ages and needs of Vicente, Anthony, Joseliann and Evelyn as of the date of the filing of the TPR petitions or as of May 7, 2009, the last date of the TPR hearing, he could assume a responsible position in the lives of Vicente, Anthony, Joseliann and Evelyn as their day-to-day full-time parent;

(7) prior to and after filing its March 20, 2008, termination petitions, DCF made efforts that were reasonable under the circumstances of the father's substantial unavailability because of his incarcerations to reunify the father with Vicente, Anthony, Joseliann and Evelyn, but the father was not able to reach a point after the adjudications of neglect where reunification with him was in best interest of Vicente, Anthony, Joseliann and Evelyn;

(8) prior to and as of March 20, 2008, the father abandoned each of the children in the sense that the father has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of each of the children;

(9) prior to and as of March 20, 2008, there was no ongoing parent-child relationship between the father and Evelyn, which means the relationship that ordinarily develops as a result of a parent having met on a day-to-day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of Evelyn; and

(10) with respect to Vicente, Anthony, and Joseliann, DCF failed to prove by clear and convincing evidence that prior to and as of March 20, 2008, there was no ongoing parent-child relationship between the father and Vicente, Anthony, and Joseliann, because DCF did not establish that Vicente, Anthony, and Joseliann had no positive feelings for, or memories of, the biological father. See In re Valerie D., 223 Conn. 492, 531 n. 33, 613 A.2d 748 (1992) ("We also followed the lead of the Appellate Court . . . in further refining this definition to require that the child's memories or feelings be positive in nature. See In re Jessica M., 217 Conn. 459, 469, 586 A.2d 597 (1991).) See also In re John G., 56 Conn.App. 12, 23, 740 A.2d 496 (1999).

THE BEST INTEREST OF VICENTE, ANTHONY, JOSELIANN AND EVELYN:

The court has considered the best interest of Vicente, Anthony, Joseliann and Evelyn. The court has considered whether it is in the best interest of any of Vicente, Anthony, Joseliann and Evelyn to be returned to the mother or to the father, 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 Vicente's, Anthony's, Joseliann's and Evelyn's ". . . interests in sustained growth, development, well-being, and continuity and stability of [their] environment . . ." In re Ryan R., 102 Conn.App. 608, 625-62 (2007). Unfortunately for Vicente, Anthony, Joseliann and Evelyn, since January 19, 2006, the mother and the father have not provided and currently are unable to provide each of them with such safe, secure, nurturing, stable and permanent environment that addresses and is responsive to their individual or special circumstances and needs. On the other hand, in the care of the three sets of non-relative foster parents, each has been and is receiving love, nurturing and appropriate care in a stable environment. In accordance with applicable federal and state law, the court finds, by clear and convincing evidence, that it is in the best interest of Vicente, Anthony, Joseliann and Evelyn and that it is necessary for each of their well-being, growth, development, safety, security, stability, continuity, consistency and permanency, and for closure, that the rights of the biological mother and the biological father be terminated.

CONCLUSION AND ORDERS:

Having considered the evidence and the statutory, Practice Book and case law requirements, the court finds, by clear and convincing evidence:

(a) DCF proved by clear and convincing evidence that the mother and the father of Vicente, Anthony, Joseliann and Evelyn, each of whom was previously adjudicated neglected, had failed as of March 20, 2008, the date of the TPR petitions (and as of May 7, 2009, the end of the TPR hearing), to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the ages and needs of Vicente, Anthony, Joseliann and Evelyn and their individual and special circumstances and needs, either could assume a responsible continuous parenting position in Vicente's, Anthony's, Joseliann's and Evelyn's lives;¹⁶ and

16 See, e.g., In re Halle T., supra, 96 Conn.App. at 835-36 (page 20, supra):

. . . [I]n assessing rehabilitation, the critical issue is not whether the parent has improved [her] ability to manage [her] own life, but rather whether [she] has gained the ability to care for the particular needs of the child at issue . . .

(b) it is in the best interest of Vicente, Anthony, Joseliann and Evelyn 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 Vicente, Anthony, Joseliann and Evelyn are hereby terminated.

The commissioner of the department of children and families is appointed as the statutory parent of Vicente, Anthony, Joseliann and Evelyn. The initial status report concerning Vicente, Anthony, Joseliann and Evelyn 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.

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