Opinion
No. HP12-CP06-011133A
May 18, 2011
MEMORANDUM OF DECISION
The department of children and families (DCF) has brought this petition to terminate the parental rights (TPR) of Ileen W. and Glenn M. to the minor child Zachary W., born on June 12, 1994 with a plea and summons date of April 14, 2010, at which time neither parent appeared. Upon review of the military affidavits filed by the department, the court found that neither party was in the military services of this country and defaults were entered against both respondents. The matter was scheduled for a default trial on May 5, 2011, at which time the department offered testimony from social worker Jennifer Clark and the social study in support of the TPR petition dated April 6, 2011. The court then heard closing argument from counsel for DCF and the minor child, both of whom asked the court to grant the petition. After providing written notice to the parties of its intention to do so, this court has taken judicial notice, pursuant to Connecticut Code of Evidence § 2-2(b), of all orders reflected in the court file. See, e.g., In re Selena O., 104 Conn.App. 635, 648, 934 A.2d 860 (2007) (Supreme Court e.g., In re Selena O., 104 Conn.App. 635, 648, 934 A.2d 860 (2007) (Supreme Court took notice of order contained in trial court file); In re Justice V., 111 Conn.App. 500, 502-03, 959 A.2d 1063 (2008), cert. denied, 290 Conn. 911, 964 A.2d 545 (2009) (Supreme Court took judicial notice of order in probate court file). Neither of the parents claims Indian Tribal affiliation. The court is not aware of any other proceedings pending in any other court regarding the custody of these children, and this court has jurisdiction. The court has carefully considered the evidence presented, and finds the testimony of the social worker to be credible and the social study to be well-written, capably reasoned, and credible. The matter is now ready for decision, and the facts found herein were established by clear and convincing evidence.
Connecticut Code of Evidence Section 2-2, captioned "Notice and Opportunity To Be Heard," provides in pertinent part as follows;
(b) Court's initiative. The court may take judicial notice without a request of a party to do so. Parties are entitled to receive notice and have an opportunity to be heard for matters susceptible of explanation or contradiction, but not for matters of established fact, the accuracy of which cannot be questioned.
I
Adjudicatory Decision
Trial of a petition to terminate parental rights has two phases, adjudication and disposition. In the adjudicatory phase of the proceeding, the court must make separate determinations as to reasonable efforts and the statutory grounds for termination.
A
Effect of Defaults
The two respondents having been defaulted, the adjudicatory bases for terminating the respondents' parental rights are deemed and found to have been proven by the requisite standard of clear and convincing evidence. Practice Book § 32a-2(a) establishes that child protection proceedings, including petitions for termination of parental rights, are civil matters. See also In re Samantha C., 268 Conn. 614, 634, 842 A.2d 1124 (2004); In re Shonna K., 77 Conn.App. 246, 253, 822 A.2d 1009 (2003). As in other civil matters, the entries of defaults against the respondents establish admission of the material facts constituting the petitioner's cause of action, and conclusively determine that the petitioner has prevailed on each of the elements at issue in the adjudicatory phase of this proceeding. Commissioner of Social Services v. Smith, 265 Conn. 723, 732-33, 830 A.2d 228 (2003) (respondent in child support proceeding who fails to respond to pleadings "is deemed to have judicially admitted the underlying facts of the support petition"); see also Bank of America, FSB v. Franco, 57 Conn.App. 688, 693, 751 A.2d 394 (2000). In an abundance of caution, appropriate to the gravity of the TPR issues at hand, however, the court has further considered the petitioner's evidence that addresses the specific adjudicatory grounds alleged.
Practice Book Section Sec. 32a-2 provides in pertinent part as follows: "All hearings are essentially civil proceedings except where otherwise provided by statute . . ."
B
Reasonable Efforts
Terminations of parental rights under § 17a-112(j), as was pleaded here for the two respondents, requires the court to find whether
General Statutes Section 17a-112(j) provides, in pertinent part, as follows: "The Superior Court . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that (1) the Department of Children and Families 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, . . ."
There is clear and convincing evidence that DCF has made reasonable efforts to locate the parent; and
There is clear and convincing evidence that DCF has made reasonable efforts to reunify the child with the parent, unless the court finds that the parent is unable or unwilling to benefit from reunification efforts.
With respect to these two statutory elements, the court hereby finds by clear and convincing evidence as follows:
1. Reasonable efforts to locate
DCF made reasonable efforts to locate both respondents and caused each to be served with the TPR petition.
2. Reasonable efforts to reunify
Zachary was taken into DCF custody in December 2006 after he had violent outbursts at school in which he kicked a window and fountain. School officials called an ambulance because he was out of control but the respondent mother, after first agreeing for Zachary to be taken by ambulance to Connecticut Children's Medical Center (CCMC), then revoked that permission. Pursuant to General Statutes § 17a-101g, DCF thereafter invoked an administrative hold, which was later ratified by an order of temporary custody (OTC) signed on December 8, 2006, by Superior Court judge Michael Dannehy, allowing Zachary to be taken to the hospital. Zachary had a long history of mental health and related behavioral issues dating back at least to 2002, and had been previously hospitalized on several occasions. His mother also had a long history of involvement with DCF concerning her continuing use of illegal drugs, and at the time of the OTC Zachary's father had not had an active or consistent role in his life for several years. The reasons that Zachary was taken into DCF custody might thus be summarized as the failure or inability of Zachary's mother to address his mental health needs, her history of substance abuse that interfered with her ability to care for Zachary and meet his mental health needs, and his father's lack of involvement in his life and unwillingness or inability to assume full-time care for his child. The evidence establishes clearly and convincingly that DCF made reasonable efforts to reunify Zachary with each respondent by offering them services and contact with Zachary intended to address the reasons that Zachary had been removed from parental care and custody.
Section 17a-101g provides in relevant part as follows: "(c) If the Commissioner of Children and Families, or his designee, has probable cause to believe that the child or any other child in the household is in imminent risk of physical harm from his surroundings and that immediate removal from such surroundings is necessary to ensure the child's safety, the commissioner, or his designee, shall authorize any employee of the department or any law enforcement officer to remove the child and any other child similarly situated from such surroundings without the consent of the child's parent or guardian. The commissioner shall record in writing the reasons for such removal and include such record with the report of the investigation conducted under subsection (b) of this section."
DCF repeatedly offered substance abuse treatment to Ms. W., and although she did complete one program in 2007, she refused to follow through with aftercare treatment programs, including relapse prevention, or submit to random drug testing, and has said numerous times that she continues to use crack cocaine. Since May of 2010 she has refused to speak to the DCF worker assigned to the case. Because of her refusal to accept relevant and necessary services, the court also finds by clear and convincing evidence that she was unwilling to benefit from reunification efforts.
Zachary lived with his father for a short while when he was seven years old, and although there were two reports then of physical abuse by Mr. M. toward Zachary that DCF had substantiated, after Zachary's placement in DCF custody, the department attempted to reconnect the relationship between father and son. Mr. M. began visiting Zachary at the therapeutic foster home and then having overnight visits beginning in August 2007. Visits then became sporadic when Mr. M. was diagnosed and began receiving medical treatment for an aggressive form of cancer. After DCF filed a permanency plan for adoption in 2009, however, and Mr. M.'s cancer had gone into remission, visits resumed, and the parties agreed that Zachary would spend the summer of 2010 with Mr. M. That June Zachary went to his father's home, returning to his foster home for occasional short visits, but on July 22, 2010, Zachary and Mr. M. had an argument that resulted in Zachary running away from his father and calling his foster mother to come pick him up. Since then, Zachary and his father have refused to see each other. Under these circumstances, the court finds by clear and convincing evidence that DCF made reasonable efforts to reunify Zachary with his father and that Mr. M., by virtue of his refusal to have contact with Zachary since last July, has been unwilling to benefit from those reunification efforts.
C
Statutory Grounds for Termination
The TPR petition alleges failure to rehabilitate, pursuant to General Statutes Section 17a-112(j)(3)(B), as grounds for terminating the parental rights of both respondents. As to the respondent father DCF also alleges, as an additional ground, that he has abandoned Zachary, pursuant to General Statutes § 17-112(j)(3)(A). Each ground set forth in General Statutes § 17a-112(j)(3) is an independent basis for termination. In re Baby Girl B., 224 Conn. 263, 293, 618 A.2d 1 (1992). To prevail in a non-consensual termination of parental rights case, DCF must prove at least one of these statutory grounds for termination by clear and convincing evidence. See In re Michael B., 49 Conn.App. 510, 512, 714 A.2d 1279, cert. denied, 247 Conn. 919, 722 A.2d 807 (1998). Only one ground need be established, however, for the granting of a TPR petition. In re Juvenile Appeal (84-BC), 194 Conn. 252, 258, 479 A.2d 1204 (1984).
General Statutes Section 17a-112(j)(3)(B) provides as follows:
The Superior Court . . . 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; . . .
General Statutes Section 17a-112(j)(3)(A) provides as follows:
The Superior Court . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that . . . (3)(A) the child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child; . . .
In the present case, the petitioner filed the petition to terminate the respondent's parental rights on March 14, 2011. Under Practice Book § 35a-7(a), in the adjudicatory phase of the proceeding, "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." See In re Anthony H., 104 Conn.App. 744, 757, 936 A.2d 638 (2007), cert. denied, 285 Conn. 920, 943 A.2d 1100 (2008). In the adjudicatory phase of this proceeding, the court has considered the evidence related to circumstances and events prior to the adjudicatory date, insofar as the allegations pertaining to abandonment by the respondent father. With regard to the allegations of failure to achieve rehabilitation, the court has also considered the evidence and testimony related to circumstances occurring through the close of evidence in May 2011 on the issue of whether the degree of rehabilitation is sufficient to foresee that either parent may resume a useful role in the child's life within a reasonable time.
1. Failure to Rehabilitate — § 17a-112(j)(3)(B)
General Statutes Section 17a-112(j)(3)(B) authorizes terminating parental rights to a child previously found to have been neglected or uncared for if the parent fails to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, the parent could assume a reasonable position in the life of that child. "Personal rehabilitation as used in [§ 17a-112] refers to the restoration of a parent to his or her former constructive and useful role as a parent . . . [The statute] requires the trial court to analyze the [parent's] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time . . . [The statute] 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." (Citations omitted; internal quotation marks omitted.) In re Eden F., 250 Conn. 674, 706, 741 A.2d 873, reargument denied, 251 Conn. 924, 742 A.2d 364 (1999).
The petition filed in this case by DCF used the standard form JD-JM-40, which bifurcates failure to rehabilitate into two separate grounds for termination: Ground B1 for children previously found to have been neglected; and Ground B2, for children in DCF custody for 15 months whose parents have been provided specific steps to facilitate return of the child. The form thus treats § 17a-112(j)(3)(B) as establishing two separate adjudicatory grounds, one under (B)(i) that does not require issuance of specific steps to parents of children previously found neglected and the other under (B)(ii) that does require issuance of specific steps to parents of children in DCF custody for at least 15 months. This court is not aware of any appellate decision expressly addressing such a distinction but a strong case supporting such treatment was made by the court in In Re Nicholas G.V., Superior Court, judicial district of Middlesex, child protection session at Middletown, docket no. D03-CP07-002405-A (May 21, 2009) (Bear, J.). In view of the fact that this issue was not raised here and this court has thus not had the benefit of argument of counsel, however, this court will treat the statute here as requiring the provision of specific steps for either component of § 17a-112(j)(3)(B).
"[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." (Internal quotation marks omitted.) In re Amneris P., 66 Conn.App. 377, 384, 784 A.2d 457 (2001). "Terminating a parent's rights is not ordered to punish a parent who has not tried to rehabilitate; it is ordered so as not to punish a child by denying [the child] a safe permanent home with proven competent caretakers because [the] biological mother has tried hard but continues to be incapable of providing such a home for [the child]." In re Samantha B., 45 Conn.Sup. 468, 477, 722 A.2d 300 (1997), aff'd, 51 Conn.App. 376, 721 A.2d 1255 (1998), cert. denied, 248 Conn. 902, 732 A.2d 177 (1999). In re Joseph W., 121 Conn.App. 605, 997 A.2d 512 (2010). "What is a reasonable time is a factual determination that must be made on a case-by-case basis," depending on the age and needs of the particular child. In re Shannon S., 41 Conn.Sup. 145, 154, 562 A.2d 79, aff'd, 19 Conn.App. 20, 560 A.2d 993 (1989).
In conducting the inquiry as to whether the commissioner has proven a respondent's failure to rehabilitate by clear and convincing evidence, the trial court must consider:
the respondent's rehabilitative status as it relates to the needs of the particular child; and
whether the prospects for rehabilitation can be realized within a reasonable time given the age and needs of the child.
"The statute requires the court to find by clear and convincing evidence that the parent's level of rehabilitation is less than that which would encourage a belief that he or she can assume a responsible position in the child's life within a reasonable time." In re Shyliesh H., 56 Conn.App. 167, 173, 743 A.2d 165 (1999). "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." Id. The crux of the adjudicatory ground of failure to rehabilitate is whether a parent has sufficiently addressed the problems and deficiencies in parenting that led to state intervention in the family so that the parent can, considering the age and needs of the child, assume a responsible position in the child's life, or will be able to do so in the reasonably foreseeable future. The court must thus determine whether the petitioner has proven, by clear and convincing evidence, that Ms. W. and Mr. M., after having been provided with specific steps following adjudications that their child had been neglected, had failed, as of the relevant adjudicatory date and the close of evidence, to achieve the required degree of personal rehabilitation.
a. Respondent mother
After Zachary was adjudicated to be neglected in May 2007, the court entered orders of specific steps that Ms. W. should take to facilitate her son's return to her care and custody. Among those orders were for her to submit to random drug testing, sign releases authorizing DCF to communicate with recommended substance abuse treatment providers, not abuse alcohol or use illegal substances, submit to and complete substance abuse treatment successfully, and follow treatment and aftercare recommendations. These orders regarding her substance abuse problem addressed the crux of why Zachary had been removed from her — that her continuing use of illegal substances such as cocaine had prevented her from meeting Zachary's mental needs.
Since at least 2002, Zachary has been treated for mental health issues. He has been diagnosed with attention deficit disorder, oppositional defiance disorder, and post-traumatic stress disorder. In second grade he was transferred from his first elementary school to the Hartford Transitional Learning Academy (HTLA) Annex program because of his behavior at school. HTLA school officials reported that he was "violently off the wall" almost every day. In 2002 he became a patient in the Institute of Living's (IOL) partial hospitalization and extended day treatment program. While at HTLA he received medication and psychotherapy to address his mental health issues, but by late summer 2006 he had again been referred to the IOL's outpatient extended day treatment program, and it was Ms. W.'s refusal to allow him to be taken to CCMC that December when his behaviors escalated that led to his being taken into DCF custody.
Because of these mental health issues, Zachary needed, and still needs, a sober and competent parent or caretaker to take care of his needs, but Ms. W. sometimes forgot to give him his psychiatric medication and other times would not participate in or communicate with the hospital mental health staff treating her son. Her failure to engage in successful substance abuse treatment and to remain substance-free after treatment, either before the adjudicatory date or since then, proves clearly and convincingly that, after having been provided with specific steps to facilitate reunion with her son, Ms. W. was not able to assume a responsible position in Zachary's life, in view of his age and needs, on the adjudicatory date or at the close of trial, and will be not able to do so at any time in the reasonably foreseeable future.
b. Respondent father
Upon the adjudication that Zachary was neglected in May 2007, specific steps were also ordered for Mr. M. He initially cooperated with DCF services, but after his diagnosis with cancer in early 2008 the department put his services "on hold as he [was] struggling with his health . . ." (Ex. 1, at 25.) In August 2008, his health deteriorating, Mr. M. stopped communicating with DCF or visiting Zachary until early 2010, when his disease had gone into remission. Visits resumed, and the department believed that Mr. M. was having appropriate interactions with his son during those visits until the argument between father and son in July 2010 that led to the complete severance of any contact between them since then. Zachary has attempted to reach out to his father to discuss the incident but Mr. M. has refused to have any contact with him.
In the context of the failure to rehabilitate ground for termination of parental rights, the "rehabilitation" necessary for Mr. M. would have been for him to become willing and able to take care of Zachary and to respond appropriately to his son's mental health needs. A parent unwilling to have contact with a child, however, is either unwilling or incapable of meeting those needs so long as parent and child have no contact with each other. Under these circumstances, the court finds by clear and convincing evidence that Mr. M.'s unwillingness to have any contact with Zachary shows that, after having been provided with specific steps to facilitate his reunion with his son, he could not and cannot assume a responsible position in Zachary's life, given Zachary's age and his needs, as of the adjudicatory date, since then, or in the reasonable future.
2. Abandonment — § 17a-112(j)(3)(A)
The petitioner has asserted, as a statutory ground for terminating Mr. M.'s parental rights, that as of the adjudicatory date, he had abandoned Zachary. "In adjudicating a petition to terminate parental rights on the ground of abandonment, the court's focus is on the parent's conduct." In re Jaime S., 120 Conn.App. 712, 994 A.2d 233 (2010).
A lack of interest in the child is not the sole criterion in determining abandonment . . . General Statutes [Rev. to 1995] § 17a-112 (b)(1) [now § 17a-112(j)(3)(A)] defines abandonment as the [failure] to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child . . . Attempts to achieve contact with a child, telephone calls, the sending of cards and gifts, and financial support are indicia of interest, concern or responsibility for the welfare of a child . . . Abandonment occurs where a parent fails to visit a child, does not display love or affection for the child, does not personally interact with the child, and demonstrates no concern for the child's welfare . . .
In re Kezia M., 33 Conn.App. 12, 17-18, 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993). The statute requires DCF to show by clear and convincing evidence that a parent has failed to maintain a reasonable degree of interest in the welfare of his or her child. "Maintain implies a continuing, reasonable degree of concern," "not . . . a sporadic showing of the indicia of interest, concern or responsibility for the welfare of a child." Id., 18. "The commonly understood general obligations of parenthood entail these minimum attributes: (1) express love and affection for the child; (2) express personal concern over the health, education and general well-being of the child; (3) the duty to supply the necessary food, clothing, and medical care; (4) the duty to provide an adequate domicile; and (5) the duty to furnish social and religious guidance . . ." (Citation omitted; internal quotation marks omitted.) Id.
The court finds by clear and convincing evidence that as of the adjudicatory date Mr. M. had abandoned Zachary within the meaning of § 17a-112(j)(3)(A). He has refused to have any contact with Zachary since July 2010 and has rebuffed efforts by Zachary to heal the breach between them. He has refused to provide his son with an adequate domicile, necessary food, clothing, and medical care. He has affirmatively refused to show or maintain any interest, concern, or responsibility for his son. This ground is proven by clear and convincing evidence.
II
Disposition
"A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition . . . 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 interest of the child." (Citation omitted; internal quotation marks omitted.) In re Roshawn R., 51 Conn.App. 44, 52, 720 A.2d 1112 (1998). Unlike the adjudicatory phase, on disposition the court may consider information through the close of the evidentiary hearing. In the dispositional phase of this case the court has considered the evidence and testimony related to circumstances and events up to and including May 5, 2011, the date upon which the evidence in this matter was concluded.
A
Required Statutory Findings
In making the dispositional decision in a non-consensual case, "the court is mandated to consider and make written findings regarding seven factors" specified in General Statutes § 17a-112(k). See, e.g., In re Tabitha P., 39 Conn.App. 353, 664 A.2d 1168 (1995). "[T]hose `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.'" In re Davonta V., 98 Conn.App. 46-47 (2009). As required by the statute, the court has considered the statutory factors and makes the following written findings, which the court has considered in determining whether it is Zachary's best interest to terminate the parental rights of the respondent parents. In re Quanitra M., 60 Conn.App. 96, 758 A.2d 863, cert. denied, 255 Conn. 903, 762 A.2d 909 (2000).
General Statutes Section 17a-112(k) provides 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."
(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 — § 17a-112(k)(1)
DCF repeatedly offered substance abuse treatment services to the respondent mother, referring her to the Wheeler Clinic Life Line Program in February 2007, March 2007, March 2008, and May 2008. She was referred to the Advanced Behavioral Health's Project Safe outreach program in December 2007. Ms. W. had been involved with the department and been offered substance abuse treatment services even before the OTC in this case, including in September 2005. In February 2007 she did complete substance abuse treatment at the Rushford Center to which DCF had referred her but she did not follow through with the aftercare treatment recommendations and instead resumed using cocaine. In January 2007 she was also referred to the Common Sense Effective Parenting Program at the Village for Families and Children but she did not participate in the program. Zachary and she were referred to the IOL's partial hospitalization and extended day treatment program to prevent Zachary's removal from her home and facilitate their reunion.
DCF referred Ms. M. for substance abuse evaluation, in which he participated, and no need was found for treatment or services. He was referred to the Village for Families and Children to participate in family therapy sessions with Zachary. He was offered regular visitation until he became sick and again after the cancer went into remission. During the summer of 2010, while Zachary was living with him, Mr. M. was offered services from My People's Clinical Services and the Village to provide support to him and to continue stabilizing Zachary's behaviors.
(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 — § 17a-112(k)(2)
The court finds that DCF made reasonable efforts to reunite the respondent parents with Zachary pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended: For Ms. W., those efforts consisted primarily of mental health treatment to Zachary to address his mental health needs and behavioral outbursts and substance abuse treatment to Ms. W. so that she could become a competent and sober caretaker. These were reasonable and appropriate to accomplish reunification, but Ms. W.'s refusal to stop using illegal drugs prevented reunification. For Mr. M., the department provided family counseling and visitation, both of which were essential to facilitate Zachary's reunification with his father, and the planned summer-long visit in 2010 was a reasonable step toward reunification, but Mr. M's refusal to have any contact with Zachary since their argument in July 2010 has prevented any further reunification efforts on DCF's part.
(3) The terms of any court orders entered into and agreed upon by any individual or agency and the parent, and the extent to which the parties have fulfilled their expectations — § 17a-112(k)(3)
The court ordered the respondent parents to comply with the following orders to regain custody of their child.
Keep all appointments set by or with DCF. Cooperate with DCF home visits, announced or unannounced, and visits by the child(ren)'s court-appointed attorney and/or guardian ad litem
Ms. W. participated in only one of nine administrative treatment plan case reviews (ACR) since Zachary's removal and has refused to allow DCF access to her home. Mr. M. participated in two of the ACRs and had scheduled home visits until July 2010, when he cut them off.
Keep whereabouts known to DCF and your attorney
Mr. M. complied with this order but there were periods when Ms. W. did not. The family home was foreclosed in September 2009, and she told DCF she had no intention of telling the department where she was going to live after that. A family member purchased the home, however, and she has continued to reside there.
Visit child(ren) as often as DCF permits and demonstrate appropriate parent/child interaction during visits
Ms. M. had weekly visits with Zachary at his maternal grandmother's home for two or more hours until she told DCF that she no longer wanted the department's assistance in seeing her son. The foster father is indirectly related by marriage to Ms. M., and the foster parents now facilitate regular contact between Zachary and his mother. The evidence showed that Ms. W. was often uninvolved with Zachary during the visits that were supervised by DCF, which lasted at least until the summer of 2009. On his birthday that year, for example, DCF brought him to his grandmother's home for a visit. His mother, grandmother and sister were all present, but none of them acknowledged him being there and slept throughout the visit, which occurred during daytime hours. When Zachary decided he wanted to leave, Ms. W. gave him thirty dollars with which she told him to buy himself a birthday present. There is little information available about Ms. W.'s interactions with Zachary since she stopped using DCF as a means to see her son, except that she appears to have acquiesced in the foster parents as Zachary's caretakers. Twice in recent months, for example, Zachary has run away from the foster parents' home after an argument there and gone to his mother's home, and Ms. W. has then returned Zachary to the foster parents.
Zachary had regular visits with his father after the removal until Mr. M. became sick, and after his disease went into remission those visits resumed. There was no direct evidence in the record about the quality of those visits, but the court infers from the fact that DCF agreed to a summer-long visit in 2010 that Mr. M. had been demonstrating appropriate interactions in the visits until then. Despite being offered visits and contact both by DCF and the foster parents since then, he has not visited Zachary at all (and, hence, not as often as DCF would have permitted).
Participate in parenting and individual counseling and make progress toward the identified treatment goals
Ms. W. refused to participate in services to which DCF referred her other than the one substance abuse treatment program she completed in 2007, but she refused to follow the aftercare treatment recommendations.
Mr. M. was referred to family counseling with Zachary, but his illness initially prevented him from participating. DCF planned for him to begin participating in these services while Zachary was living with him during the summer of 2010 but Mr. M. did not do so after Zachary left Mr. M.'s home. Mr. M. was receiving supportive services from My People's Clinical Services and the Village for Families and Children while Zachary was living with him that summer. The evidence did not specify whether treatment goals had been set for Mr. M. in the specific steps, but, from taking judicial notice of the orders in the court file, the court notes that the specific steps ordered at the time of the original OTC on December 8, 2006, and at the 10-day hearing for the OTC on December 15, 2006, stated that the treatment goals for individual and parenting counseling for Mr. M. were for him to improve his parenting skills and address any identified issues. The specific steps ordered on May 10, 2007, at the time of the adjudication of neglect, did not identify specific treatment goals. From Mr. M.'s refusal to have any contact with Zachary following the argument between them, the court infers, and finds, that Mr. M. did not make sufficient progress toward the treatment goals originally set at the OTC.
Accept and cooperate with in-home support services referred by DCF and make progress toward treatment goals
Ms. W. would not sign releases for in-home services or allow DCF to have access to her home. DCF provided in-home support services to Mr. M. while Zachary was living with him during the summer of 2010, and the court infers that Mr. M. was making satisfactory progress toward his treatment goals until Zachary left the home and Mr. M. thereafter refused to have any contact with his son, from which facts the court infers that Mr. M. was no longer willing to accept or cooperate with in-home services or make progress toward treatment goals.
Submit to substance abuse assessment and follow recommendations regarding treatment
Ms. W. submitted to substance abuse treatment once, but thereafter resumed using cocaine and refused further treatment or aftercare treatment recommendations. Mr. M. underwent a substance abuse evaluation, which resulted in no recommendations for further services.
Submit to random drug testing; the time and method of that testing shall be at the discretion of DCF
Ms. W. refused to comply with this order. None testing was requested of Mr. M.
Cooperate with service providers recommended by DCF for parenting/individual/family counseling, in-home support services, and/or substance abuse treatment
Ms. W. refused to cooperate with abuse treatment or counseling, in-home service providers, or other services offered by DCF. Mr. M. did cooperate with DCF in the initial period after Zachary was taken into care, but was unable to do so in 2008 and 2009 while he dealt with his own health problems; but upon remission of his disease he again cooperating with DCF service providers until the July 2010 argument that severed contact between him and his son. Since then he has not cooperated with DCF or been willing to see his son.
Sign releases authorizing DCF to communicate with service providers to monitor attendance, cooperation and progress toward identified goals and for use in future proceedings before this court
Ms. W. refused to sign releases, and Mr. M. did.
Secure and maintain adequate housing and legal income
Both parties complied with this requirement.
No substance abuse
Ms. W. continued to use crack cocaine except for the limited time in 2007 when she participated in the Rushford treatment program. Substance abuse has not been an issue for Mr. M.
No involvement with the criminal justice system
There was no evidence of any issues in this respect.
(4) The feelings and emotional ties of the child with respect to his parents, any guardian of his 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 — 17a-112(k)(4)
Zachary has lived in the therapeutic foster home of Mr. and Ms. Mc. since August 2007. Mr. Mc.'s brother is married to Zachary's sister. The foster parents have established relationships with both Zachary's mother and father, and Zachary often visits his mother after school or on weekends and often sees his siblings and extended family. He has repeatedly stated that he would like to be adopted by the Mc. family, and he has come to understand that his mother is not able to be his regular and daily parental caretaker. Zachary's relationship with Mr. and Ms. Mc. is quite similar to a parental relationship, and he considers the Mc. home to be his home. He is closely bonded to his foster mother but has a somewhat more complex and conflictual relationship with his foster father, with whom he occasionally gets into arguments that social worker Clark characterized as a "power struggle," a not uncommon conflict between teens and their parents.
(5) The age of the child — § 17a-112(k)(5)
Zachary is 16 years old, and will turn 17 on June 27 of this year.
(6) The efforts the parent has made to adjust his circumstances, conduct, or conditions to make it in the best interest of the child to return him to his 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 — § 17a-112(k)(6)
Ms. W. has not changed that aspect of her conduct, her frequent use of illegal drugs, that led to Zachary's removal from her care. She has maintained regular contact with both him and the foster parents, and that contact is likely to continue even after termination.
Early in Zachary's life, when he was living with his father for periods of time, Mr. M. was substantiated by DCF for physical abuse and neglect of Zachary. One incident occurred in 2001 when school officials reported that physical abuse from Mr. M. had left scratches, bruises and other marks on Zachary's body. In 2003 Mr. M. was diagnosed with post traumatic stress disorder related to his military service in the marines during the Vietnam war, during which he was almost killed, and he was prescribed certain medications to help him address his PTSD symptoms. His PTSD symptoms have affected his relationships with others, and he attributes the end of his first marriage to PTSD-related behavior on his part. Although Zachary told DCF that his father beat him with his hands throughout his time in his father's home, after Zachary's removal from his mother's care in 2006, DCF explored the possibility of his father being a resource in his life and began regular visits between father and son. Mr. M.'s diagnosis of PTSD and his abuse of Zachary early in Zachary's life show that Mr. M. has had difficulty modulating his anger and self-control. His refusal to see Zachary or have contact with him after their argument in the summer of 2010 is another example of that difficulty, and Mr. M. has not made adequate efforts to adjust his own conduct or attitudes to become the responsible adult in Zachary's life.
(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 — § 17a-112(k)(7).
Neither parent has been prevented from maintaining a meaningful relationship with Zachary as the result of any unreasonable act or conduct of the other parent, of any other person, or by reason of the parent's financial circumstances.
B
Best Interest of the Child
The final element of the termination of the parental rights statute, § 17a-112(j), requires that, before granting a petition for such termination, the court must find "by clear and convincing evidence . . . (2) that termination is in the best interest of the child . . ." The best interest standard is inherently flexible and fact-specific to each child, giving the court broad discretion to consider all the different and individualized factors that might affect a specific child's welfare. In determining whether terminating the respondents' parental rights would be in Zachary's best interest, the court has considered various factors, including his interest "in sustained growth, development, well-being, and in the continuity and stability of [his] environment"; Capetta v. Capetta, 196 Conn. 10, 16, 490 A.2d 996 (1985); his age and needs, the length and nature of his stay in foster care, the nature of his relationship with his biological and foster parents, the regular contact he has maintained with his mother, the loss of contact with his father, the potential benefit or detriment of his retaining a connection with his biological parents, his genetic bond to each parent; In re Savanna M., 55 Conn.App. 807, 816, 740 A.2d 484 (1999); and the seven statutory factors and the court's findings thereon. The court has also balanced Zachary's intrinsic need for stability and permanency against the potential benefit of maintaining a connection with his biological parents. See Pamela B. v. Ment, 244 Conn. 296, 314, 709 A.2d 1089 (1998) (child's physical and emotional well-being must be weighed against the interest in preserving family integrity). In this case, in view of the continuing contact that Zachary has maintained with his mother, through the cooperation of the foster family, and the willingness of the foster family to encourage contact between Zachary and his father, it is likely, if they become his permanent foster parents or adopt him, that Zachary will continue to have contact with his mother. Hence, it is unlikely that termination of the respondents' legal parental rights will, in this case, result in complete severance of contact between Zachary and his mother. The possibility of resuming contact with his father cannot be determined since it is unknown whether Mr. M. will ever again be willing to have contact with him.
The credible and reliable evidence establishes by clear and convincing evidence that terminating the parental rights of both respondent parents is in Zachary's best interest. His mother is not capable of being responsible for him, as she places her own desire (or need) to use cocaine above Zachary's need for a sober and competent parent. She is satisfied with Zachary's current arrangement, in which he lives with the Mc. family but can see her and his extended family on her side regularly. She has said that she feels that the foster family takes good care of him and she is happy about that. His father has not been willing to reach out to Zachary or even respond to the repeated overtures made by Zachary or on his behalf since their argument and separation last July.
Zachary's mental health problems have repeatedly been manifest by behavioral outbursts since he was a young child. Running away from his father last summer at a gasoline station after an argument on the way to family therapy is an example of Zachary acting out in defiance of parental expectations and social norms. Another example is when he was regularly causing the toilet to overflow by plugging it with feces and toilet paper at the beginning of 2010 and then smearing feces in the bathroom when his foster parents told him clean up the mess. A few months previously, after his foster mother had taken an object away from him, he hit her and kicked Mr. Mc. in the groin. That escalation of his behavior into physical violence is a cause for serious alarm. He is now at an age at which such conduct is increasingly likely to come to the attention of the police and court. It is essential for him to learn how to accept responsibility for and anticipate the consequences of his actions.
Zachary has repeatedly stated his desire to be adopted, but social worker Clark credibly testified that he has also shown a tendency to have behavioral outbursts at times when he knew that the child protection proceedings in juvenile court were approaching another juncture. His desire to be adopted surely reflects a strong and normal desire on his part for a stable, consistent family that he could call his own, and not just one where he has been placed by a state child welfare agency. Even though an adolescent, he still needs a sober, stable, competent and consistent parent or responsible caretaker in his life. It is not surprising that court proceedings here evoke outbursts on his part, for his desire to be adopted must also be accompanied by a fear he will not be. His desire for adoption is so intense that he recently told Clark that he would go back to the foster home and be quiet so that his behavior was not a concern to the court or the foster parents. It is encouraging to hear that Zachary believes he can control his behavior.
Although the DCF social worker testified that the department does not want adoption to be a behavior management tool, by which the court believes she meant that DCF does not want Zachary to control his behavior just to get adopted, the court is not so sure that her views are correct. Internal motivation to change is an important component in effecting change. It would not necessarily be a bad thing for Zachary if his motivation to obtain a result that he wants helps him learn how to control his behavior. Obviously the root psychological and emotional causes for the behaviors should still be explored and addressed to prevent their recurrence and eruption in later life, and it would also be essential for Zachary and his treatment providers to work on helping him learn how to maintain improved behavior. On the other hand, this court does not view it as proper to terminate the respondents' parental rights merely as a psychological device to motivate Zachary to change his behaviors. As noted above, the best interest of the child/youth involves a multiplicity of factors. His parents are not now and do not appear likely ever to be ready or willing to assume full-time responsibility for Zachary. His desire for adoption reflects his knowledge of that fact and his hope that the Mc. family or some other family could provide him with the stable, consistent, loving home in which every child and youth should live. Only by terminating the respondents' parental rights will he have that possibility.
In view of Zachary's strong desire to be adopted, the failure of his mother to change her own conduct in such a way as would allow her to resume the responsible position in Zachary's life, and the refusal of his father to have any contact with him or reconcile their differences, and all the other evidence discussed herein and further recounted in the social worker's testimony and the social study, the court finds by clear and convincing evidence that it is in his best interest to terminate the parental rights of both respondents.
III
Orders of Termination
The court having considered all the statutory criteria, having found by clear and convincing evidence that grounds exist for the termination of the parental rights of both respondents, and having further found by clear and convincing evidence, upon consideration of all of the facts and circumstances presented, that it is in Zachary's best interest to terminate the parental rights of the respondent parents, it is hereby ORDERED:
The department's petition for termination of parental rights of the respondent mother and father is granted, and judgment may enter terminating the parental rights of Ileen W. and Michael M. to the youth Zachary W.
Pursuant to General Statutes Section 17-112(m), it is ordered that the Commissioner of the Department of Children and Families be appointed statutory parent for Zachary so that he may be placed for adoption. In securing the adoption, the court urges the department to give first preference to the present foster parents.
General Statutes Section 17a-112(m) provides, in pertinent part, as follows: "The Superior Court may appoint a statutory parent at any time after it has terminated parental rights if the petitioner so requests."
Pursuant to General Statutes § 17a-112(o) and Practice Book Section 35a-14(g), the statutory parent shall file a written report on the case plan for Zachary, the permanency plan, and the status of the youth with the clerk of the Superior Court for Juvenile Matters at Hartford on or before June 17, 2011 at 9:00 a.m. A written status report on implementation of the plan will be due by September 17, 2011. Since a permanency plan was most recently approved by the court, Dyer, J., on November 30, 2010, a motion for review of permanency plan must be filed on or before August 30, 2011, and a hearing on such plan shall be held on October 11, 2011 at 9:30 a.m.
General Statutes Section 17a-112(o) provides, in pertinent part, as follows: "In the case where termination of parental rights is granted, the guardian of the person or statutory parent shall report to the court not later than thirty days after 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. The court may convene a hearing upon the filing of a report and shall convene and conduct a permanency hearing pursuant to subsection (k) of section 46b-129 for the purpose of reviewing the permanency plan for the child no more than twelve months from the date judgment is entered or from the date of the last permanency hearing held pursuant to subsection (k) of section 46b-129, whichever is earlier, and at least once a year thereafter while the child remains in the custody of the Commissioner of Children and Families."
Practice Book Section 35a-14(g) provides in pertinent part as follows: "Where a petition for termination of parental rights is granted, the guardian or statutory parent of the child or youth shall report to the judicial authority not later than thirty days after the date the judgment is entered on a permanency plan and on the status of the child or youth. At least every three months thereafter, such guardian or statutory parent shall make a report to the judicial authority on the implementation of the plan, or earlier if the plan changes before the elapse of three months. The judicial authority may convene a hearing upon the filing of a report and shall convene and conduct a permanency hearing for the purpose of reviewing the permanency plan for the child no more than twelve months from the date judgment is entered or from the date of the last permanency hearing held in accordance with General Statutes § 46b-129(d), whichever is earlier, and at least once a year thereafter while the child or youth remains in the custody of the commissioner of the department of children and families."
Additional reports and/or motions to review of the plan will be filed in accordance with state and federal law at least every three months until such time as an adoption of the youth is finalized.
The department is also ordered to notify the clerk of the Superior Court for Juvenile Matters at Hartford in writing when any adoption is finalized.
Pursuant to an agreement between the Chief Court Administrator and the Chief Probate Court Administrator, the clerk of the Probate Court that has jurisdiction over any subsequent adoptions of this youth is ordered to notify in writing the clerk of the Superior Court for Juvenile Matters at Hartford of the date when said adoptions are finalized.