In re Alivia C.

Full title: IN RE ALIVIA C.[*]

Court: Superior Court of Connecticut

Date published: Oct 9, 2018

W10CP16017271A (Conn. Super. Ct. Oct. 9, 2018)

Opinion

W10CP16017271A

10-09-2018

IN RE ALIVIA C.[*]

Boland, J.T.R.

UNPUBLISHED OPINION

File Date: October 10, 2018

OPINION

Boland, J.T.R.

This memorandum addresses a petition seeking the termination of the parental rights of Kelly T., mother, and of Mario D., father, of Alivia C., born May 19, 2011. Also addressed is father’s motion to revoke commitment, which he filed after the third day of trial on the termination petition. Although Alivia is one of four children born to Kelly, Mario is her father alone and unrelated to her half-siblings. For that reason, the court writes on this petition separately from those concerning the other children. For the reasons set forth below, the petition for termination of parental rights is granted, and the motion to revoke commitment is denied.

I. Procedural Background

Alivia’s present involvement with this court began on August 17, 2016, when the Commissioner of the Department of Children and Families ("DCF") filed a neglect petition alleging that the child had been neglected, for reasons other than being impoverished, by being denied proper care and attention, physically, educationally, emotionally, or morally; or by being permitted to live under conditions, circumstances or associations injurious to her well-being. The initial hearing on the neglect petition was held on September 21, 2016. Kelly was served at her place of abode, appeared on the scheduled date, and was appointed counsel.

The original neglect petition named as father of this child one Jose C., an individual who was Kelly’s live-in partner and the father of two of her other children. Questions shortly arose as to whether he was actually this child’s biological father. Following paternity testing, the court (Spellman, J.) on December 21, 2016, determined that Mario D. was instead the child’s father. Previously, an amended neglect petition had been served upon him, he had appeared, and counsel had been appointed to represent him.

Meanwhile, on October 29, 2016, DCF had invoked a 96-hour hold on behalf of the child, and, on November 2, 2016, it filed a motion seeking an order of temporary custody of the child. The court (Spellman, J.), granted that motion on an ex parte basis on November 2, 2016, and sustained that order at a November 8 hearing attended by mother and by both Jose and Mario. Accompanying the initial orders preliminary specific steps were set forth for both parents detailing the behavior expected of each to remedy the circumstances that had led to Alivia’s removal.

On January 18, 2017, this court adjudicated the child to have been neglected as alleged, and ordered her committed to DCF. On that occasion, specific steps of similar character as those issued preliminarily were again set forth for both parents aimed at remedying the circumstances that had led to the neglect finding, and to permit the reunification of Alivia with her parents.

On August 30, 2017, this court approved DCF’s permanency plan for the child, which was termination of mother’s parental rights, and, at that time, reunification with father. On November 1, 2017, however, when DCF filed the petition now before this court, the department was instead seeking termination of the parental rights as to both parents. The petition alleges that both parents have failed after the finding of neglect to achieve the degree of personal rehabilitation that would encourage the belief that within a reasonable time either could assume a responsible position in Alivia’s life considering her age and her needs. On May 14, 2018, Judge Spellman accepted mother’s consent to the granting of the petition, and allowed DCF to amend this petition to allege consent as its sole ground with respect to mother.

Mario D. contests the allegations of the termination petition. Trial on that aspect of the petition was held before this court on multiple dates between May 24, 2018, and September 11, 2018. Thereafter the parties submitted briefs.

On August 28, close to the trial’s completion, father filed a motion to revoke commitment.

There is no action pending in any other court which would affect the custody of this child, and this court has jurisdiction to enter orders with respect to her custody. There is no indication that the child is a member of any Native American tribe.

II. Adjudication

A. Adjudication As to Mother

Sec. 17a-112(i), CGS, provides that a parent’s consent is a sufficient foundation for an order terminating her parental rights as long as the court finds that (1) upon clear and convincing evidence, the termination is in the best interest of the child, and (2) such parent has voluntarily and knowingly consented to termination of the parent’s parental rights with respect to such child. Judge Spellman made the requisite findings as to the voluntariness of the consent at the May 14 hearing when he accepted it. The findings related to the child’s best interest are set forth below.

B. Adjudication as to Mario D.

As to father, DCF is proceeding under Sec. 17a-112(j)(3)(B). This provides that a court may grant a petition for termination of parental rights of a parent if, by clear and convincing evidence, the court finds that (i) the child has been found ... to have been neglected, abused, or uncared for in a prior proceeding, or (ii) the child is now found to be neglected, abused, or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of the child has been provided specific steps to take to facilitate the return of the child to that parent, and that the 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 the child, such parent could assume a responsible position in this life of this child. It is indisputably a matter of record, and this court thus finds, that pre-condition (i) of the statute is met; this court made a neglect adjudication here on January 18, 2017. Coincidentally, the child has also been in the custody of the commissioner since November 2, 2016, more than twenty-three months, and specific steps were then provided to Mario D. to facilitate Alivia’s return to him. The pivotal question here is whether Mario D. has achieved or failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time he could assume a responsible position in this child’s life considering her age and particular needs.

In general, "[i]n order to terminate a parent’s parental rights under § 17a-112, the petitioner is required to prove, by clear and convincing evidence, that: (1) the department has made reasonable efforts to reunify the family; General Statutes § 17a-112(j)(1); (2) termination is in the best interest of the child; General Statutes § 17a-112(j)(2); and (3) there exists any one of the seven grounds for termination delineated in § 17a-112(j)(3)." In re James O., Jr., 322 Conn. 636, 649 (2016). The James O. opinion continues: "[w]hen the petitioner seeks to terminate a parent’s parental rights on the ground that the parent has failed to rehabilitate, [t]he trial court is required, pursuant to § 17a-112, to analyze the [parent’s] rehabilitative status as it relates to the needs of the particular child, and further ... such rehabilitation must be foreseeable within a reasonable time.’ ... Therefore, the trial court must first determine the needs of the particular child before determining whether a parent has achieved a sufficient rehabilitative status to meet those needs." Id., 650-1 (Citations omitted).

1. Alivia’s Needs

Alivia reached age seven in May of this year. The court has before it only scant evidence on the details of her life experiences before the events of 2016. At the time of her birth, mother and Jose C. had already cohabited for several years. Their first child was born in 2009. Both were habitual substance abusers well known to the prosecuting authorities. Their relationship included repeated instances of domestic violence by Jose against Kelly, in response to which she would seek respite with friends. At least once, approximately nine months prior to Alivia’s birth in May of 2011, she became intimate with Mario while sheltering in his home. This resulted in Alivia’s conception, although Kelly did not disclose that fact to him until sometime in 2015 when her relationship with Jose was coming undone. Although Jose had apparently been made aware from the beginning that Alivia was the child of another, he nevertheless signed Alivia’s birth certificate and treated her as his daughter.

In 2009, two years before Alivia was born, DCF had interacted with Kelly and Jose by filing a neglect petition with respect to their firstborn son. The court adjudicated that child to be neglected, but he remained in the parents’ custody under protective supervision. DCF involvement with the family on that basis had ended shortly before Alivia arrived. Jose and Kelly went on to have another child born in 2013 as well as a fourth in 2014. At the time of that child’s birth, mother was incarcerated. Along with her siblings, Alivia remained in the custody of Jose. Kelly again became incarcerated in 2015, and in the later year spent nine months at York Correctional. Apparently Alivia remained in Kelly’s care when Kelly was not in jail, and in Jose’s care when mother was unavailable.

Despite mother’s instability, and despite reports of repeated domestic violence when the two parents were together, the petitioner did not seek additional court intervention on behalf of this child until August 17, 2016. It did, however, interact with the parents extensively between March of 2016 and the date of the petition filing. The family was in undeniable distress in those months. Kelly was noted to be under the influence of various drugs on numerous occasions. DCF entered into safety plans with her and Jose, and both violated the terms of those agreements. She and Jose fought when together, and she wound up in jail for a month in the spring. Neither was meeting the needs of the children for adequate medical or dental care, or even for having adult supervision in the house when their own needs led them in other directions.

Throughout her first five years, Alivia recognized Jose as her father and trusted him to fulfill that archetypal role in her life. She knew nothing of Mario, and for most of those five years, he was likewise ignorant that he had a child. He spent three of those years in Mexico, and played no role whatsoever in Alivia’s life.

In addition to Alivia, the other children residing with mother and Jose C. included Javier, now 10; Kevin, now 5, and Kelsie, now 4. The take-into-custody order of November 2 affected all four children. Javier and Alivia were placed in the home of foster parents Josue and Rosemary N. Kelsie and Kevin spent a few months in a different foster home, but all four children have resided in the N. household since April 13, 2017. The parental rights of the parents of the other three children have all been terminated. The foster parents are keenly interested in adopting all four children.

A catalog of Alivia’s needs includes those common to all young children, including shelter, nutrition, education, medical care, and so on. Alivia has experienced at least two additional and pressing needs. First, present for much of her first five years and acutely present in 2016, was her need of rescue from an environment suffused with substance abuse, crime, and domestic violence. She is remarkably resilient and has been able to progress academically and socially during the two years in the N. household despite the turmoil and dislocation of her earlier years. The second need has been evident throughout the past two years, which is to cope with the loss of both of the parents she had ever known and adjust to life with another family capable of providing her with structure and love. She has recent and fond memories of Kelly, and she continues to assert that Jose is her "real" father and the one she can count on to take care of her. She knows that they will not be continuing in her life in the same roles. For her, transitioning between her real mother and that "real" father to feeling secure with the family in whose care fate and DCF have placed her has become her primary psychological challenge.

2. Father’s Response to Those Needs

As noted, Mario was not present during the first four years of this child’s life. That fact alone does not disqualify him as a parent. The statute’s use of the words "rehabilitation" and "return" reflect the circumstance present in the large majority of cases in this realm, namely that the parent whose performance is under examination had at some earlier time become separated from a child with whom there had been some degree of relationship. The American Heritage College Dictionary, 4th. Edition, includes four definitions for "rehabilitate," and all four begin with "to restore." "Return" denotes even more emphatically a transition back to an earlier place or time or situation. Yet in the matter of Oreoluwa O., 321 Conn. 523 (2015), where a termination proceeding involved a child born in the U.S. with a father in Nigeria who had remained in his home country and had never met the child before the termination petition was filed, the Court made clear that a father’s absence did not excuse DCF from the duty of making reasonable efforts to reunify him with his child. Although the task of "restoring" a parent to a prior, lost status may have different components than that of building from the ground up a foundation upon which a parent can function as the law expects of him, the latter undertaking is not presumably impossible. Here, where Mario’s identity as Alivia’s father was concealed from him during those years, and his absence thus justifiable due to this circumstance beyond his control, this court draws no inferences against him based upon that absence. The focus must be on what has occurred since he became aware that he had a daughter.

Precisely when that fact became known to him was not established. He returned to Connecticut after his three-year stay in Mexico in February of 2015 and testified that he learned it thereafter, but he was the sole witness on that issue and his historical recollections were remarkably vague. Kelly had to have disclosed it to him not later than March of 2016, because in that month they purchased a paternity testing kit off the shelf at a local pharmacy. That test yielded positive results. While the test may not have furnished the same quality of proof as did the court-ordered testing that came later in the year, it was sufficient to alert him to the responsibility to reorient his priorities and respond to the needs of his daughter when her mother and stepfather were on a steep slide towards destruction.

"An inquiry regarding personal rehabilitation requires us to obtain a historical perspective of the respondent’s child-caring and parenting abilities; " In re Stanley D., 61 Conn.App. 224, 231 (2000). From March of 2016 until DCF took the children into custody on October 29, he did little to rescue his daughter from the risks facing her. He claims without corroboration that he purchased food and clothing for Kelly and all four of the children and that he gave her money to assist with shelter and other demands. Any such efforts on his part, however well-intentioned, are unquantified and were obviously inadequate to the need. He did not meaningfully present himself to DCF as a resource for Alivia. He did not approach the family court or the juvenile court to seek custody of the child. Overall, one must assess his passivity in response to her needs throughout this long period as, at best, benign neglect.

His relationship to Alivia entered a new phase after the order of temporary custody was sustained and he was formally pronounced to be Alivia’s father. DCF considered him to be a resource for Alivia’s ultimate placement. Both the preliminary specific steps accompanying the order of temporary custody and those reiterated as final steps upon the January 2017, neglect finding set forth expectations that fall into the following clusters: 1) stay in touch with and cooperate with the directives of DCF; 2) take part in parenting counseling, and in Alivia’s counseling; 3) be assessed for substance abuse, and remain free of consumption of any illegal substance; 4) visit with the child; 5) maintain adequate housing and a legal income; and 6) not get involved with the criminal justice system.

Mario has made remarkable progress in meeting several of those expectations. He has a full-time job and his own part-time business on the side. These provide him regular and adequate income.¹ He has had no criminal involvement. He has stayed in contact with DCF.

1 In fact, if one adds even a minimum-wage projection of what his part-time business is earning to the income which he testified his job pays, one arrives at a figure that is almost double that which he claimed to be earning on the affidavit supporting his application for appointed counsel.

His most positive accomplishment has been his visiting interaction with Alivia. Between January and June of 2017, he attended every scheduled visit and succeeded in bringing her out of an initially skeptical and resistant shell. By June, DCF had determined that the progress shown made placement with Mario the child’s best prospect, which explains why reunification with him was the goal set forth in its August 2017, permanency plan. As of that date, the main obstacle in the view of DCF was that he was still living with two roommates in a residence where he had only a single bedroom of private space and thus could not accommodate Alivia. This housing inadequacy had been present throughout at least the prior year, and as it turns out, was a deficiency he did not eliminate until he finally secured his own apartment sometime in 2018. In June of 2017, however, anticipating that housing would become a soon-resolved issue, Mario’s visits were upgraded by placing him in the Therapeutic Family Time program. This program incorporated a trained counselor into the visits to assist in the parent-child communications and intensify the prospects of reunification. At that higher level, he continued with perfect attendance and, in the eyes of the counselor, has overcome any prior deficit and is now fully able to assume a positive role in Alivia’s life.

Besides the lack of housing, substance abuse is the other area in which his progress toward rehabilitation has been insufficient. In the first six months of 2017, DCF had made routine referrals for substance abuse evaluation and testing following his reports of prior recreational use of marijuana and an arrest for driving under the influence ten years earlier. He denied any other recent alcohol abuse or drug consumption. Urine screens in March and May rang no alarm bells. Sometime in that period Kelly had informed the DCF social worker that Mario was using both cocaine and marijuana. After he failed to appear for a routine screen in June, the department referred him back for a full hair toxicology test, which detects the presence of a substance consumed within approximately the preceding ninety days as opposed to the urine screen’s three-day lookback. When the hair test was finally performed on September 22, the results were positive for both cocaine and marijuana. This time, alarm bells did ring, and moved what had appeared to be merely remote substance abuse concerns to center stage.

Mario denied drug usage. DCF offered him the opportunity for further testing. On various dates in November, urine screens were positive for marijuana on several occasions. Each time, he challenged the result and demanded a lab test, and each of the lab tests confirmed the initial positive result. DCF insisted that he have another hair follicle test in order to get a longer range view, as well as to probe whether cocaine usage remained an issue. The effort to get him tested took more than six months. His communication with the department was intermittent, and when he did show up for a scheduled test he had shaved the hair over his entire body. He testified that this was merely a fashion choice and that his hair grows very slowly. This court observes that on May 24, 2018, when trial began, he had a buzz cut. On September 11, his hair was approximately two inches in length, indicating growth at the rate of at least one half inch per month. In any two-month period, therefore, it could have reached the one-inch length required to permit the hair test to be performed. Not until August of 2018 was he finally able to yield a negative result from a hair follicle test.

Mario also claimed that the 2017 indications of cocaine and marijuana in his system resulted from the behavior of others. He blamed the cocaine on Kelly, asserting that sometime in July he drank from a bottle that she tendered to him after lacing it with cocaine. Her motive, in his opinion, was that she had turned against him and wanted to frustrate his reunification with Alivia. He has given two starkly different versions of the circumstances in which this frame-up occurred. At trial, he testified that he ran into her at a gas station where, appearing disheveled and clutching a bottle of Gatorade, she implored him to allow her the use of a shower at his apartment. He acquiesced. She came and went within less than a half hour, but insisted that he partake of the faux Gatorade. In October of 2017, when he first responded to the social worker’s questions about the cocaine test result, he said Kelly had slept overnight at his apartment and had offered him a bottle of water in which she had concealed the cocaine. Whether Gatorade or water, whether the stay lasted thirty minutes or overnight, his story does not explain both how she could be so clever and he so gullible, and his "the woman is to blame" excuse works no more convincingly for him than it did for Adam. His explanation for the marijuana involves other miscreants but is also unpersuasive. He denies using marijuana on his own, but says he had to ride to work with associates who were using the substance and that what he inhaled was secondhand smoke emanating from the joints they were smoking. As to both substances, he shirks responsibility, even though under all the circumstances it is highly likely that he was continuing to indulge while attempting to conceal that practice.

DCF did not attempt to quantify his usage, nor to prove that apparently casual consumption of either substance is a per se disqualifier of one seeking to be entrusted with parenting responsibilities. However, Mario’s resistance to discernment of the scope of his usage recalls the resistance demonstrated by Matthew M., father of Shane M., 318 Conn. 569 (2015). Shane had been in DCF care for a little over two years before the trial which terminated Matthew’s parental rights. Matthew had complied in several respects with specific steps issued by the court upon ordering temporary custody of the child, particularly those relating to visitation. He had maintained employment and participated in various forms of counselling. But Matthew refused to submit to drug testing or to address identified mental health issues. The Court concluded that DCF had proven that "his failure to acknowledge the underlying personal issues that form the basis for the department’s concerns indicates a failure to achieve a sufficient degree of personal rehabilitation." The opinion’s comments upon the lessons to be drawn from each of the authorities cited in support of that conclusion are particularly illuminating:

See In re Kamora W., 132 Conn.App. 179, 190, 31 A.3d 398 (2011) (respondent refused to acknowledge drug or alcohol problem); In re Jocquyce C., 124 Conn.App. 619, 626-27, 5 A.3d 575 (2010) (respondent failed to acknowledge habitual involvement with domestic violence); In re Christopher B., 117 Conn.App. 773, 784, 980 A.2d 961 (2009) (respondent blamed others for problems); In re Jermaine S., 86 Conn.App. 819, 834, 863 A.2d 720 (respondent’s inability to admit she had substance abuse problem ‘thwarted her ability to achieve rehabilitation), cert. denied, 273 Conn. 938, 875 A.2d 43 (2005).

318 Conn. 589-90 (emphasis added).

All of the parents in those cases appealed unsuccessfully from the termination of their parental rights, and Mario shares with each an aversion to resolving a significant problem that the Court deemed noteworthy.

Even when isolated from other lapses, drug usage constitutes an issue of concern sufficient on its own to support the conclusion that a parent has failed to rehabilitate. B.F., the mother in the case In re Luis N., 175 Conn.App. 271, cert denied 327 Conn. 958 (2017), had persisted in using cocaine and marijuana through a substantial portion of the time between filing a termination petition and the time of trial. Even though she was clean as of the trial, the court affirmed the termination of her rights pointing out that

[t]he court’s memorandum of decision contains a detailed history of the respondent’s pattern of substance abuse, including her use of illegal drugs during the termination proceedings despite the specific step to refrain from that activity. The court found that the respondent never came to appreciate the negative effect the use of marijuana had on her capacity to meet the needs of the children, to keep them safe, or, in fact, to keep herself safe. Although the respondent achieved a period of sobriety for approximately six months prior to the end of the trial, the court concluded that the respondent’s sobriety was too fragile and untested to lead to the conclusion that she would be able to care for the special needs of [the children] within a reasonable time ... On the basis of our review of the record, we conclude that there is clear and convincing evidence to support the court’s conclusion that the respondent failed to rehabilitate;

175 Conn.App. 271, 304-5

Viewed, as he must be, as his own unique person, it is obvious that Mario is able to follow some directives while he chooses to defy others. Punishment for his lapses is not the objective of this proceeding. Alivia has already paid the cost of his evasiveness with respect to the drug issue and his failure to find a suitable apartment, as she has had to wait more for him for than a year when they might otherwise have been speeded towards reunification. He seems unconscious of or indifferent to that cost. He frittered away all of 2016 when Alivia was in dire straits and could have benefitted from the intervention of a concerned parental figure. Then, throughout 2017 and well into the current year, he dithered over finding shelter and shedding a drug habit. This inertia displays a pronounced inability to sense the child’s needs and prepare himself to address them. Even at the time of trial, which follows more than a year of his having counsel and various coaches ready to tell him what to do, he was unable to name the child’s doctor, dentist, teacher, or best friend. His present blindness to even Alivia’s routine needs nearly three years on into this time in her life augurs poorly for his developing a future ability to anticipate the needs that will come with time and to know how to resolve those needs when he has no one to tell him what to do. His interest in reunification with Alivia may be high, but his parenting initiative and instincts are lamentably low; "[t]he sad fact is there is a difference between parental love and parental competence." In re Christina, 90 Conn.App. 565, 575 (2005) aff’d, 280 Conn. 474 (2006).

Would more time overcome that conclusion? The Stanley D. decision, supra, indicates that the answer to that question requires "a factual determination that must be made on a case-by-case basis." "The factors to be considered in deciding whether it would be in [the child’s] best interest to permit further time for a relationship with [his parent] to develop include (1) the length of stay with [his] foster parents; (2) the nature of [his] relationship with [his] foster parents; (3) the degree of contact maintained with the natural parent; and (4) the nature of [his] relationship to the natural parent"; In re Savanna M., 55 Conn.App. 807, 816 (1999).

Mario’s strongest argument arises out of factors three and four in that test, for he has shown some success in his visits with Alivia, and they certainly establish that he has maintained good contact with her. The success of the visits have earned him the support of his visitation supervisor who has observed his progress during the weekly playdates. With her endorsement, he proposes a three-month intensified preparatory regime after which reunification can be completed. They may be reading too much into the success of those visits. Reflecting a middle child’s adaptability to events created for her by others, Alivia has been able to engage with him on those occasions, as might any resourceful child taken regularly to the park or to an ice-cream stand and made the center of attention on such occasions. The level of his success matches that found on the part of Samuel, the father in In re Unique R., 170 Conn.App. 833 (2017). Samuel had been unaware of his child’s existence before she was three. He was able to establish a good record of visiting with her, but still found to be deficient in other material respects by the trial court which terminated his parental rights. Affirming, the appellate court characterized him as "nothing more than a visiting resource." The same may be said of Mario.

Turning to the first two factors of the Savanna test, it is significant that during the time Mario was taking to alter his personal circumstances for the sake of Alivia, almost three years have passed in her life and she has spent almost all of the last two of those years with the N. family. In the opinion of the DCF social worker, as well as the foster mother and other adults involved with this child, she has adapted well to the N. home. She is a regular education student in a local public school who is on target academically. All her medical and dental needs are being met. She is working with a therapist to address some of the anticipated consequences of her earlier experiences, but the therapist has not expressed any concerns about the prospects for success in the long term.

On her relationship with that family and the needs they are fulfilling, we have additionally her own assessment of who can best meet those needs. When the court is looking to the future and trying to project whether additional efforts at reunification will succeed, "the feelings of the child are of paramount importance ... The ultimate question is whether the child has no present memories or feelings for the natural parent ... Feelings for the natural parent connotes feelings of a positive nature only"; In re Christian P., 98 Conn.App. 264, 269 (2006). Alivia is an intelligent but scarred seven-year-old and as a veteran of an entire life spent in familial distress has opinions that she has voiced consistently. What she says about her feelings and emotional ties to both Mario and the other significant adults around her puts her in a different light than, say, that of a younger child whose feelings must be deduced from behavior observed by others and perhaps refracted by their own biases.

Alivia has never indicated that she has any desire to live with Mario. She has told her therapist, her attorney, a visitation coordinator, her DCF social worker, and her foster mother, that if she cannot be reunited with Kelly and Jose then she most desires to remain in the N. household. In her hierarchy, reunification with those whom she called her parents as she grew up is the highest good, and the N. family stands as the only acceptable alternative.

In fact, the notion that Mario is her father has no positive emotional resonance for her. She sees his paternal overtures as largely a threat to her tranquility and adjustment to the prospect of living permanently with the foster parents. She does not want to be separated from her three siblings (with whom Mario has no legal relationship). She fears that he will take her to Mexico (which he would have every right to do). She feels that he is sometimes too excessive in his displays of physical affection for her (something which the counselor has been addressing). She has difficulty overcoming the language barriers which separate them (he speaks Spanish, she English, and neither has a good command of the other’s language).

Her feelings and emotional ties to those other figures in her life cannot be deemed dispositive. As one of the findings mandated by § 17a-112(k)(4) these are generally considered after adjudication as an inherent part of the pre-dispositional inquiry. However, the inquiry at the moment is confined to the question of how much more time, if any, might be needed to accomplish reunification. In this as in other aspects of adjudication, it is elementary that "the trial court ... analyze the [parent’s] rehabilitative status as it relates to the needs of this particular child"; In re Elvin G., 310 Conn. 485, 507 (2013), and that the court conducting such an inquiry must take into account "an entire broad set of circumstances"; In re Mariana A., 181 Conn.App. 415, 433 (2018). Declaring that reunification would soon be feasible while ignoring an intelligent child’s own repeated statements of informed hostility towards that prospect would be reckless. It would render her voiceless on a subject upon which she has unique competence to comment. Alivia’s unvarying protests against leaving the N. household and moving to Mario’s apartment are a consideration undermining the expectation that additional time will eliminate the existing barriers to reunification. The evidence supporting that conclusion is clear beyond a reasonable doubt.

The conclusion I reach on the basis of the aggregated evidence is that it clearly and convincingly indicates that Mario has not rehabilitated to a degree sufficient to justify the belief that within a reasonable time he could assume a responsible position in this child’s life. Perhaps, had he accompanied his visits with timely attention to both the particular needs of this child, as clearly set forth in the specific steps, to say nothing of her general developmental needs that cannot be ignored, then the expectation of his imminent achievement of responsibility might be reasonably defended; on the record to date, sadly, that is not possible.

C. Reasonable Efforts to Reunify

"As part of the adjudicatory phase, the department is required to prove, by clear and convincing evidence, that it 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"; In re Elijah C., 326 Conn. 480, 500 (2017).

Prior to the indication of consent by mother on May 14, 2018, it is clear that DCF was making reasonable efforts to reunify this child with her. Even before the child was committed to the department, it had referred mother to a family-based recovery program, then to an agency providing counseling and treatment for both substance abuse and mental health issues. These interventions were unsuccessful, and in October of 2016 the temporary custody order came after the discovery that she was actively using opiates and had left the children unattended in a motel while she was out shopping for drugs. Thereafter, DCF referred her again to four different agencies for help with attaining sobriety, each including a residential stay program and one with particular emphasis on mother/child reunification. She self-discharged from all four. Supportive housing assistance was offered. Visitation was set up on a supervised basis, and she attended the majority of scheduled visits; however, she began to lose control over her own emotions and the visits ceased in June of 2017. By her own admission, further efforts at reunification would not be successful.

Until December of 2016 when Mario was adjudicated to be Alivia’s father, he had played little role in this child’s life. Mother had permitted him limited and apparently furtive contact with Alivia for a number of months before paternity was adjudicated. By that date, Alivia was over five years old. There is no indication that she has ever previously perceived Mario to be her father. Thereafter, however, DCF began to groom Mario to step in as the parental figure for this child, to the degree that in the first permanency plan it presented in August of 2017 its express objective was her reunification with him.

I have detailed above the accomplishments as well as the failures of this process. At this time, as a consequence of that history, the evidence is clear and convincing as to Mario also that DCF made reasonable efforts to reunify Alivia with him but that it would no longer be reasonable to continue those efforts.

III Best Interest of the Child

General Statutes § § 17a-112(i)(1) and 17a-112(j)(2), each require that this court separately determine, in conjunction with the findings just made, that the termination of the parental rights of each of these respondents is in Alivia’s best interest. Again, the standard of proof is clear and convincing evidence.

"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 Athena C., 181 Conn.App. 803, 811 (2018). In making this determination, one must understand that "[t]he best interest standard ... is inherently flexible and fact specific and gives the court discretion to consider all of the different and individualized factors that might affect a specific child’s best interest"; In re Shanaira C., 297 Conn. 737, 760 (2010). Essentially, "[t]he best interests of the child include the child’s interests in sustained growth, development, well-being, and continuity and stability of its environment"; In re Baciany R., 169 Conn.App. 212, 227 (2016). In assessing those interests:

The court must consider the age of each child, the educational, medical, psychological (and sometimes psychiatric) needs of the child, the relationship that may exist ... with current caregivers and prior caregivers, the length of time the child has been in care and where, the current stability of the child or lack of it, and the various bonds the child has with various interested parties. This list is not exhaustive but is a good starting point when analyzing the situation to determine what is in the best interest of the child. Deeds, misdeeds, circumstances or events cannot cause the court to rule without consideration of the child’s best interest at present. How it might have ruled had the deeds, misdeeds, circumstances or events not happened is not relevant to the issue at hand. What might have been in the child’s best interest at the inception of the case may no longer be in his or her best interest today.

In re Noella A., Superior Court, Judicial District of New London, Juvenile Matters at Waterford, D.N. K09CP09011902A et al. (March 24, 2011; Mack, J.).

In cases of consenting parents, such as Kelly, concern has sometimes been expressed that a parent so consenting may be doing so with improper motives. "[I]n deciding whether to grant a consensual petition to terminate parental rights, focus must be on how the child’s well-being would be affected by the loss of the consenting parent, not on the consenting parent’s desire to rid himself or herself of the unwanted obligation to support that child"; In re Bruce R., 234 Conn. 194, 206 (1995).

Here, no such concern is present. After raising Alivia for most of her first five and a half years, Kelly’s recent consent to the termination of her parental rights is best understood in light of these additional facts. When Kelly herself was just six, her own mother died as a result of manslaughter. Her own father soon after abandoned her for the remainder of her childhood. After the death of her mother, she was raised in the home of a stepmother; the stepmother’s paramour molested Kelly when she was only seven. She then became the subject of DCF proceedings and spent years in foster care, living by her recollection in at least ten different homes. She dropped out of school in the ninth grade. It’s not clear when she became involved with Jose C., but she had her first child with him when she was nineteen. The birth of that child led to a reunion with her own biological father. What ought to have been a happy occurrence was instead the beginning of another nightmare. The father introduced her to drugs and utilized her as his procurer of drugs. She was raped by an angry dealer. The father died when she was twenty-one, eight years ago. Thanks to him, she became a chronic substance abuser and has not been able to stay sober for any length of time. She has incurred multiple arrests including felonies, has spent years in prison, and at the time this termination petition was filed was in the fifth month of her latest period of incarceration. After her first child she bore three more children, one by Jose C. and the other two by two different men. She has repeatedly been involved in domestic violence incidents. Homelessness and unaddressed mental health needs have further complicated her efforts to raise her children.

Few of us could withstand such insults to body and soul. Kelly’s decision to allow Alivia to be made ready for adoption lest she face a similar fate reflects well on her judgment and selflessness. Kelly demonstrates admirable insight into her own predicament, understanding that she cannot reasonably be expected to achieve stability and provide a safe and nurturing environment for her children. She views the prospect that the children will be adopted by the N. family as the means by which they might break free of the cycle that has consumed her. The court cannot disagree with her.

As a part of making the best interest determination, § 17a-112(k) requires that the court make certain written findings. Here, in light of Kelly’s consent to termination of her rights, these findings need only be made as to Mario D. These criteria are:

(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

DCF provided him with assistance in assessing and overcoming substance abuse issues; in educating himself to the duties of a parent, including how to provide for his daughter’s basic survival needs; in maintaining a relationship with his daughter through frequent and productive visits; and in finding a stable home and job. Those services began as soon as his biological relationship to the child was confirmed by paternity testing, and to a significant extent they continue to the present.

(2) Whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption and Safe Families Act of 1997, as amended from time to time

DCF committed itself to delivery to father of an array of services towards that end, as contemplated by this statute, and as enumerated in the specific steps which were entered here in September of 2016 and again in January of 2017.

(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

The specific steps twice ordered for father directed that DCF provide him assistance in assessing and overcoming substance abuse issues; in counselling to address that problem; in educating himself to the duties of a parent, including how to provide for his daughter’s basic survival needs; in maintaining a relationship with his daughter through frequent and productive visits; and in finding a stable home and job. DCF fulfilled its part of those orders. Mario complied with some, but not all, as detailed above.

(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

As to Mario: Alivia enjoys Mario’s company as a visiting companion. She is clear that she does not desire to live with him.

Other Significant Persons: Alivia’s feelings towards the N. family are positive and loving, as Mr. and Mrs. N. have been functioning now as her parents for close to two years.

(5) The age of the child

Alivia was born on May 19, 2011, and is now seven years and five months of age.

(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

Mario has made considerable strides towards establishing a relationship with this child. He has achieved a level of comfortable companionship with her. As detailed above, the level he has reached is not sufficient to reunify her with him.

(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

Despite the blame that Mario ascribes to Kelly for duping him into consuming the cocaine which proved to be a serious obstacle to his reunification efforts, there is no credible evidence that she is in fact the source of his problem, nor that the behavior of anyone other than himself impeded his making all the adjustments necessary to overcome his deficiencies. As to his economic circumstances, he is clearly not indigent. He earns substantially more than the baseline wages of persons who would today be considered as below the poverty guidelines, plus he has his own landscaping business which he runs on the weekend and did not disclose his income from in these proceedings. There is no cause for concern that his economic circumstances have in any way limited his progress here.

Mario contests the termination. At present Alivia is doing well in all the basic aspects of her development. She is beginning second grade and reports to like going to school. She is a regular education student. She is up to date on all medical and dental appointments and has no remarkable deficiencies in either category. From Mario’s perspective, with time and help he could match those accomplishments.

Alivia’s psychological and emotional realities are more complicated. First of all, she has lost the companionship of her mother, with whom she spent her first five years. Secondly, only Jose C. was an apparent alternative parental figure throughout those first five years. He of course is not a parent at all. She is in the company of her three half-siblings to whom she is very close and with whom she shares the bond of those who have come through trauma together. She has learned to trust them. Overall, despite a bleak history and many remaining challenges, she is making satisfactory² progress socially and therapeutically, and is on the cusp of achieving a permanent setting for the first time in her seven years.

2 This adjective is chosen deliberately. Certain of Alivia’s behaviors remain a challenge to her long-term success, primarily a tendency to lie and steal. While her therapist has been working with her to remedy these behaviors, the foster mother’s disciplinary tactics do cause one’s eyebrows to raise. On occasion, she has told Alivia that the house has cameras installed which can capture her little misbehaviors. On one occasion she drove Alivia (then six) to the local police station and waited in the lot until Alivia "confessed" or, if she did not, would be turned in to the authorities. Such melodrama is likely to be counter-productive. As long as DCF remains a part of this child’s development, it ought to include training for the foster mother on effective disciplinary styles and tactics. Though I don’t view foster mother’s choices to be a positive aspect of her interactions with Alivia, I do believe that on balance the remaining contributions she is making to this child’s growth make her a definite net positive for Alivia.

On the other hand, Mario D., who was a stranger to her until she was almost five, seeks her custody basically on the strength of his biological relationship to her. There are both present and future dimensions to his quest. What Mario offers today is a continuation into a fourth year of his efforts to grow into the parent he says he wants to be. By dint of his earlier extended and unexcused procrastination, even by the most optimistic projections he will require at least months of additional structured coaching and experiments with longer visits, then sleep-overs, etc. In advocating for that alternative, Mario and his visitation supervisor project that at some future date- three months, optimistically- he will have learned the skills required. In their prognosis is an assumption that has no foundation in fact, which is that Alivia is eager to pursue that alternative and so he will run into few if any obstacles as she adapts to life with him. They fail to reckon with the evidence that Alivia is not thus inclined, but instead has forcefully communicated her resistance to that plan. By ignoring this fact they cause their plan to be inherently untrustworthy.

Kelly’s intractable deficiencies and Mario D.’s failure to rise to the level of parenting required of him are definitive prove that Alivia cannot look to either biological parent for her upbringing. That conclusion, based on clear and convincing evidence that is spelled out above, is alone a sufficient foundation for a finding that Alivia’s best interest will be promoted by termination of the parental rights of each of them.

The additional factor that Alivia will not by virtue of such an adjudication be cast adrift into the sea of children awaiting rescue by an adoptive family that may never be found is a bonus. She has spent almost two years now in the care of a family that can provide for all her material needs, that appears able to also provide for her emotional and moral needs, and that is eager and willing to legally adopt her. The vacuum existing in her biological family warrants termination in its own right, but the positive prospects of life for her in the adoptive family make that determination inescapable.

IV Conclusion and Orders

This court finds by clear and convincing evidence that the best interests of Alivia C. would be served by the termination of the parental rights of Kelly T. and of Mario D. This child needs a secure and permanent environment, and is now in a healthy setting with a preadoptive foster family. Considering the relationship that the child now has with that family, considering her age, sense of time, and the totality of his circumstances, It is accordingly

ORDERED, that the parental rights of Kelly T. and Mario D. are hereby terminated. The Commissioner of the Department of Children and Families is hereby appointed statutory parent of this child for the purpose of securing a permanent placement and the child’s adoption. The Commissioner shall file with this court a written status of the efforts to effect such permanent placement and file such further reports as required by state and federal laws.

The motion for revocation of commitment is denied.

Judgment may enter accordingly. ^[*] In accordance with the Connecticut General Statutes Section 46b-124, and the Connecticut Practice Book Section 32a-7, the names of the parties in this case are not to be disclosed and the records and papers of this case shall be open only for inspection to persons having a proper interest therein and only upon order of the Superior Court.