In re Andrew R.

Full title: IN RE ANDREW R., IN RE ALEXIS A., IN RE STACYJANIRA A

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

Date published: Jun 9, 2009

2009 Ct. Sup. 9401 (Conn. Super. Ct. 2009)

Opinion

Nos. U06-CP05-005442-A, U06-CP05-005443-A, U06-CP06-005781-A

June 9, 2009

MEMORANDUM OF DECISION

BEAR, J.

These are termination of parental rights ("TPR") cases. On September 5, 2008, the commissioner of children and families ("DCF") filed motions for approval of proposed permanency plans of termination of parental rights and adoption ("TPR") for Andrew R. ("Andrew"), Alexis A. ("Alexis") and Stacyjanira A. ("Stacyjanira"), and such motions and the parents' separate objections thereto were consolidated for hearing with the TPR petitions.

The TPR petitions and the motions for review of permanency plan were heard¹ at the Child Protection Session of the Superior Court ("CPS") on May 28 and 29, 2009. On each such day of the hearing the mother of such children and her attorney were present. The fathers of such children were not present. The attorney for the father of Alexis and Stacyjanira was present but on the first day he asked to be excused when his client did not appear, and absent objection from the other parties the court granted such request, although the court asked that he be available for the second day of the TPR hearing if his client appeared at the DCF office to be transported to court on the second day. That did not occur. The attorney/guardian ad litem for each of the children, an assistant attorney general representing DCF and a representative of DCF were present on each day of the hearing.

1 Although these matters may sometimes be referred to as trials, in the Practice Book they are defined as hearings. See Practice Book § 26-1:

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

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

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

FACTS:

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

2 Practice Book § 32a-3 provides:

. . . (b) The standard of proof applied in a decision to terminate parental rights or a finding that efforts to reunify a parent with a child are no longer appropriate, is clear and convincing evidence.

1. The mother was born in July 1970, is thirty-eight years old and has given birth to eight children, none of whom, as of May 29, 2009, were in her care. The mother testified that she lived in Buffalo, New York. In May 2009, she reported to DCF that she was renting a three-bedroom apartment with a living room, dining room and kitchen. (Exhibit 18, 3.) There were two additional bedrooms in the attic. Id. She received social security disability income, New York Medicaid and food stamps, and she paid her own rent and utilities. Id. However, she was living with her husband and two of his relatives and on May 15, 2009 they were evicted from the Buffalo residence. Id.

2. On May 3, 2009, the mother traveled from Buffalo to Connecticut, and she planned to return to Buffalo on May 30, 2009. Id. While she was in Connecticut, she engaged in at least two physical altercations with the father of Alexis and Stacyjanira ("the father"). Id., 5. Additionally, she had a physical altercation with her cousin's girlfriend. Id. After this incident, the police were called and the mother was asked to leave her cousin's residence where she was staying. Id. Such cousin had sexually molested Sylvia R. ("Sylvia"), an older daughter of the mother. (Exhibit 2.)

3. Prior to May 2009, the mother had not visited with any of her children since August 2008. (Exhibit 18, 5.) She had two visits with the children in May 2009. Id. The current DCF worker described such visits with Stacyjanira as follows:

The children do not recognize her as their mother and do not run to her excited to see her. They are more excited to walk in the visiting room looking for toys than seeing their mother. Stacyjanira allows her mother to pick her up but does not reach out to her or want her to hold her at all. She comes to this worker for comfort. Stacy does not show any emotion towards her mother at all. When [the mother] picks her up, she just looks at her. Eventually she will put her head on her shoulder but it is more a relaxing reaction than a nurturing moment. Stacyjanira spends more time with this worker than her mother and engages this worker in activities with her. When this worker tells her to play with "mommy," she looks at this worker as if she does not know what this worker is talking about . . .

Id.

Such worker also described the mother's visits with Alexis:

. . . [The mother] calls Alexis "junior" the whole time. He does not acknowledge this nickname or respond to it at all Alexis talks about his "mommy" in visits referring to his foster mother, not his biological mother. He asks where she is and when she will be coming back. Alexis is more interested in the toys than anything else . . .

Id.

Andrew recognizes his mother but in a negative way:

. . . The only one who calls [the mother] "mommy" is Andrew who is used to speaking to her periodically on the telephone when she calls his foster home. When he uses the term "mommy" he says it louder and harsher than the rest of the sentence. Sometimes he will say "mommy" and when [the mother] responds, he has to think about what he wanted to say as if he was just saying the word "mommy" without any meaning behind it. He especially likes to say "mommy" to get his mother's attention when he wants to get one of his siblings in trouble . . .

Id., 5-6.

The DCF worker observed that

. . . [n]one of the children appear bonded to [the mother] or treat her like they treat their foster mothers when they want to sporadically show them love. None of them have said they loved her or show any type of loving gesture.

Id., 6.

4. The father of Alexis and Stacyjanira was born in November 1981, and is twenty-seven years old. He also reported to DCF that he was living in Buffalo with the mother, his uncle and grandmother. He also receives food stamps, New York Medicaid and social security disability payments. On May 5, 2009, the father arrived in Connecticut from Buffalo.

5. As of May 19, 2009, the father was staying with the mother's cousin who had sexually molested Sylvia and the cousin's girlfriend. The father had also sexually molested Sylvia. (Exhibit 2.) The father also has a life-threatening illness.

6. As of May 19, 2009, the father had stated to the DCF worker that he planned on staying in Connecticut and transferring all his medical, mental health and substance abuse services to Connecticut. DCF requested that the father attend a substance abuse treatment facility to have random urine screens taken from him twice each week. As of May 19, 2009, the father had not complied.

7. The father confirmed the domestic violence between him and the mother after they arrived in Connecticut in early May 2009. After the first physical altercation he determined that he was going to seek the dissolution of his marriage and reside in Connecticut. The father stated to the current worker that the mother had been physically violent and abusive to him for the last five years, e. g., since 2004. The father also reported the following to DCF:

Since being in Connecticut the past two weeks, [the father] obtained a girlfriend who he says he loves, treats him right and who he wants to spend time with. This is an incentive for him to follow through on his divorce from [the mother].

Id., 6.

The mother reported the following to DCF about the father:

[The mother] reported [the father] is using "weed" and cocaine. She said it is a party every day at her cousin's house with [the father] in the center of it.

Id.

8. The father has a history of chronic substance abuse that continued after the December 10, 2007, filing of the TPR petitions. In January 2009, the father was discharged for non-compliance from a substance abuse treatment program in Buffalo. Id. After he returned to Connecticut, the father stated to the current DCF worker that

. . . he still was not engaged in substance abuse treatment because his substance abuse counselor needed to consult with his psychiatrist to determine if his Depression was too severe to engage in substance abuse treatment . . .

Id. This was not, however, confirmed by the substance abuse treatment worker who stated that the father was discharged after three positive urine screens for marijuana. Id., 6-7.

9. The father has a therapist in Buffalo. In May 2009, such therapist stated to the current DCF worker that from a therapeutic perspective the father was "very unstable right now." Id., 7. The father needs a case manager to make sure he is attending his appointments on a regular basis and that he remains engaged in the medical and mental health services he requires. Id. Since that case manager and such services are in Buffalo, and the father had been in Connecticut since May 5, 2009, as of the TPR hearing the father was not engaged in such services.

10. The father had not visited with Stacyjanira since April 2008. Id. He had not visited with Alexis since August 2008. Id. He did not visit with either child during May 2009. Id.

11. Andrew was born in August 2002, and he is six years old. He is the fourth child born to the mother.

12. Alexis was born in December 2004, and he is four years old. He is the fifth child born to the mother.

13. Stacyjanira was born in July 2006, and she is two years old. She is the sixth child born to the mother. Stacy has lived with her foster mother since she was two days old. Id., 8.

14. On December 27, 2005, DCF invoked a ninety-six-hour hold on Sylvia, Andrew and Alexis. (Exhibit 17, 2.) Andrew was three years old, and Alexis was one year old. This was the last time that each child was in the custody of the mother or the father.

15. On December 29, 2005, DCF filed neglect petitions and ex parte motions for temporary custody. On such date, the court granted ex parte orders of temporary custody. On January 6, 2006, each such order was sustained and the court issued preliminary specific steps to each parent to facilitate possible reunification.

16. On July 13, 2006, one day after Stacyjanira was born, DCF filed a neglect petition and an ex parte motion for temporary custody. On such date, the court granted an ex parte order of temporary custody, and on September 8, 2006, such order was sustained.

17. On September 8, 2006, the court again issued specific steps to each parent to facilitate possible reunification.

18. On May 29, 2007, Sylvia, Andrew, Alexis and Stacyjanira were adjudicated neglected and each was committed to the care, custody and guardianship of DCF.

19. The mother and the father met in Buffalo in March 2004. (Exhibit 16, 2.) The father was twenty-two years old and the mother was thirty-three years old when they started their relationship.

20. The mother and her oldest children became involved with New York child protective services in 1999 because of issues of parental substance abuse and mental health issues, and with respect to the children, inadequate or insufficient guardianship, food, shelter, clothing and also educational neglect. (Exhibit 17, 2.)

21. On November 23, 2005, DCF became involved with the mother and the children who were then living with her in Connecticut for issues including educational, emotional, physical neglect and sexual abuse. Id. Both the mother and the father had mental health, substance abuse, domestic violence and other issues that interfered with their parenting of the children.

The family's transience and lack of housing were also issues identified by DCF.

22. Because of the poor conditions in their home and lack of food and lack of beds, the family moved to an emergency shelter. (Exhibit 1, 2.) At the shelter the father became delusional and he required emergency hospital care. Id. The father had reported that he was hearing voices and demons were telling him to kill the mother and his boss.

The mother left the shelter with the children before the shelter could find housing for the family, and moved to a vacant apartment with no heat or hot water. On December 27, 2005, DCF invoked a ninety-six-hour hold on Sylvia, Andrew and Alexis. While the rest of the family was in the shelter Sylvia had been left with the mother's relative who sexually molested her.

In January 2006, Sylvia stated that the father (her stepfather) had sexually molested her. DCF substantiated this allegation. The first DCF treatment worker, who was assigned to the family from January 2006, though January 2008, described how the father/stepfather and Sylvia, who on December 27, 2005, when she was removed was nine years old, "appeared as a couple" and how the mother appeared suspicious of both of them. The worker stated that it was very uncomfortable to observe Sylvia and her stepfather because of their actions when they were together. The worker also stated that the father/stepfather was more attentive to the children than the mother.

23. On June 6 and 12, 2006, Dr. B. evaluated the mother, the father and Sylvia (Exhibit 1.) The court ordered evaluation was for the psychological assessment of the mother's, the father's and Sylvia's intelligence and general emotional functioning, and for observation of parent-child interactions. Id., 1, 8, 15, 22.

Dr. B., who also testified, in his written report described the mother as follows:

[The mother] is a thirty-five-year old woman of Low Average overall intelligence who performed much better on tasks that assessed her ability to solve problems via non-verbal rather than verbal means. Her sight reading ability was at only the second grade level. She was extremely lacking in any insight into the causes of her behaviors and origin of her thoughts and feelings. She denied the need for any assistance or services at this time and she was incredulous regarding the reason for the involvement of DCF in her family's life and regarding the removal of her children by that agency. [The mother] said that she derives support and assistance from her church and she expressed a strong desire to have her children reunited with her. She clearly wishes to reunite with [the father] as well. She displayed evidence of personality disordered functioning, which did not permit her to engage the examiner and the testing process more collaboratively and cooperatively. This pattern will likely also remain an issue pertaining to her involvement with DCF where she may temporarily comply with specific steps set forth for her as a means toward the end of having her children returned to her, but not necessarily with an eye toward gaining anything personally from such. [The mother's] parenting style, which vacillates between being lax and passive and utilizing her daughter as a pseudo-parent to holding rigid views regarding children and an allegiance to a hierarchical, authoritarian style are causes for concern. Presently, she requires parent training assistance to improve her ability to communicate assertively and effectively with her children and to develop better ability for employing a more democratic and authoritative parenting style.

Id., 6.

Dr. B. described the father as follows:

[The father] is a twenty-four-year old man of Borderline overall intelligence who displayed some better ability for solving problems via non-verbal rather than verbal means. His sight reading skill was at only the third grade level. [The father] was neglected, abandoned, betrayed, and sexually abused as a child. He explained that as a teen he fathered a child with an adolescent mother and was subsequently prevented from having any contact with his daughter and her mother. [The father's] mood was dysphoric and he was exceedingly lacking in sufficient positive experiences and exposure to examples or such to presently allow him to sustain a proper spousal and parental role within his family. He was exceedingly well intentioned in his desire to care for his and [the mother's] children and to sustain an intact family with his spouse. Unfortunately, [the father's] mood disorder and history of insecure attachments as well as personality disturbance leave him susceptible to significant behavioral dysregulation. He is attempting at this time to use his son and the pending birth of another child as a means to make up for what he so woefully lacked during his own childhood. A better approach for [the father] would be to focus upon appropriately grieving the losses he has long endured and starting to learn effective strategies for parenting that allow him to focus exclusively on the developmental and emotional needs of his children rather than ways that his children might be used to meet his longstanding unmet psychological and emotional needs. It is extremely concerning that the family's DCF social worker reported that an allegation of sexual misconduct by [the father] upon his ten-year-old stepdaughter was substantiated by the Department. Presently, [the father] requires ongoing psychiatric (psychotropic medication) and psychological care to improve his mood and thought disorders, and to ensure the stabilization of his psychiatric state so that he can resume a positive role in the life of his young son.

Id., 13. (On many occasions the mother also told the first DCF treatment worker assigned to the family that she did not need services, and the mother denied that she had mental health issues.)

After the parent-child interaction, the examiner summarized the circumstances of the parents as follows:

Both [the father and the mother] displayed personality disorder functioning with [the father] also evidencing mood disturbance and concerns regarding his thought processes and the content of his thoughts. He acknowledged a significant history of abandonment and betrayal in early childhood as well as sexual abuse by a friend of his mother's during his early adolescence. [The father] continues to be greatly impacted and affected by his prior experiences of maltreatment, neglect, and abuse.

[The mother] and her children were adequately bonded and Alexis appeared to be similarly attached with his father. [The father] actively engaged his son during the parent — child interaction evaluation and his intentions to be the best father he could be for his son were evident. [The mother] took a more passive approach with her children, in part due to her late term pregnancy, but also due to a pattern where she has acceded authority and a pseudo-parental role to her daughter Sylvia who wielded such with her brothers as she pleased and with little restraint.

[The mother and the father] expressed a desire to reunite and resume their relationship and marriage of one year. [The mother] indicated that she did not seek a protective order from her husband and is not fearful of him. She seemed pleased to have [the father] be able to see her children and his son as the bus passes his house on the family's way to an appointment each week. [The father] also stated his desire to reunite with his wife of one year.

. . .

Neither [the mother or the father] admitted any contribution to the abuse/neglect/custodial situation. Both believed that others had intentionally embarked upon making their lives difficult with the goal of having their children removed from their care. [The father] noted his belief in the need for psychotropic medication to assist him and he requested a "stronger" medication at this time for doing so. [The mother] stated her view that she does not require any support or counseling assistance at this time.

No extended family member support was reported at this time. The family initially came to Waterbury with the support of extended family members on [the mother's] side of the family, but she implicated these persons in the reports made to DCF that led to her children's removal. [The mother and the father] spoke of meeting in church and of receiving support for their family and for sustaining their relationship there.

Both [the mother's and the father's] verbal intelligence is quite limited as is their sight reading skills. Both evidenced personality disordered functioning with [the father] also experiencing mood and thought disturbances born of childhood experiences of abuse, neglect, and abandonment.

. . .

[The mother and the father] both require parenting training assistance to improve their abilities to accept responsible parental roles in their children's lives and to ensure that they put their children's needs above their own. Both are at risk for using their children to meet their own longstanding unfulfilled emotional and psychological needs.

Id., 19-20.

Dr. B.'s summary and recommendations included the following observations:

. . . Impressions emerged via these interaction sessions to suggest that both parents have longstanding, unmet emotional and psychological needs and personality disturbances that impact their ability to effectively parent their children. The children, especially Sylvia, have been affected by neglect and maltreatment born of unaddressed mental health issues for their mother, and most recently [the father], and due to chronic dysfunctional family issues and impoverishment. [The father's] experiences of abuse, neglect, and abandonment during his childhood severely impact his ability to form secure attachments with others and to observe appropriate boundaries with others. He appears compelled to use his current parent — child relationships to make up for his early childhood losses and betrayals rather than more appropriately to ensure that his children receive the parenting, guidance, and nurturing they deserve as dependent children. [The mother] evidenced personality issues and deficiencies that render her unable to gain insight into her functioning and understand the causes of her feelings and behaviors and that constrict any willingness on her part to accept help with parenting her children and learning to place their needs above her own. It is of great concern that, according to the family's DCF social worker, a sexual abuse allegation against [the father] pertaining to Sylvia was substantiated. If this is the case then the examiner cannot support the return of [the father] to the family's house . . .

Id., 20-21. (Throughout the first treatment worker's assignment to the family the mother was unwilling to terminate her relationship with the father/stepfather and this caused the worker to be concerned that the mother could not insure the safety of and protect the children if any of them were returned to her.)

In his testimony Dr. B. stated that the children have been out of the mother's (and the father's) care during critical times in their lives. As of June 2006, the mother was not willing to see what the issues leading to the neglect petitions were and to accept her need to work on those issues. In December 2008, and thereafter when the mother started and continued to attend counseling it was too late for reunification between her and any of the children.

Dr. B. stated that the mother had the capacity to make decisions and choices including whether or not to engage with service providers. In June 2006, the mother's "world view" was that he and the court were her adversaries. She did not see her children's best interests. She made the choice to defend against the facts to avoid having to address the issues they raised. Dr. B. saw a volitional aspect to this approach by the mother.

Although the mother did attend some services such as the Easter Seals parent intervention program ("PIP"), when she was asked by the evaluator what it was and what she was supposed to learn from it, she responded: "It beats me."

24. On December 6, 2006, as ordered by the court, the mother was evaluated by a psychiatrist. (Exhibit 2.) The mother demonstrated that she understood DCF's claims against her:

. . . They said we were living in an abandoned house, not feeding my children, not bathing my children, and my daughter was not in school . . .

My daughter [Sylvia] said she is my husband's lover behind my back and my cousin also sex violated her.

Id., 2-3.

She denied the DCF allegations. Id., 7. She also understood that DCF did not believe the denials of such allegations by her and the father. Id., 3.

The mother described to the psychiatrist incidents of sexual abuse of her during her childhood. Id. The mother stated she attended therapy for three years during her adolescence. Id., 4. She did not find that the therapy was helpful. Id.

She told the psychiatrist that she "worked in a variety of odd jobs," the last of which was before 2000. Id. She stated that when she attends job interviews she is unsuccessful in obtaining the position. Id. "She forgets things." Id.

Under the category "mental status evaluation" the psychiatrist reported the following:

[The mother] was obese, sloppily dressed and poorly groomed. She had mild halitosis and obviously poor oral hygiene.

She was friendly at times, garrulous at others, and there were moments when her affect became quite intense.

. . .

In short, [the mother's] intellectual functioning was broadly within the normal range, with some evidence of moderate visual motor and reading impairments.

Id., 5-6.

The psychiatrist's diagnostic impressions included the following:

The mother presents with a complicated personal history that includes learning disabilities, disability due to these disabilities, childhood sexual abuse and rape, chronic protective services involvement, and having children by four different paternities, none of whom are in her care.

When confronted with derogatory allegations against her, she tended to externalize blame onto others, was dismissive of many specific allegations, and tended to maintain a somewhat simplistic attitude of denial.

Clinically she presented as sloppily groomed, emotionally labile, and mildly cognitively impaired. The emotional lability did not clearly meet the criteria for a Major Affective Disorder, but there was some evidence of emotional reactivity when discussing matters related to childhood sexual abuse, suggestive of a Post-Traumatic Stress Disorder.

Her verbal intellectual skills appeared to be intact, as did her memory. However, there were mild impairments in reading ability and visual motor constructional ability. The examiner wonders, however, whether these disabilities per se will be enough to qualify someone as disabled.

Although her exculpatory explanations about how her husband couldn't have perpetrated sexual abuse upon Sylvia sounded plausible on the surface, the intensity with which she clung to them seemed out of proportion to the preponderance of evidence to the contrary . . .

Id., 7.

The psychiatrist's DSM-IV profile for the mother was as follows:

Axis I: Post-Traumatic Stress Disorder, chronic, residual state

Reading Disorder

Learning Disorder Not Otherwise Specified (visual constructional dyspraxia)

Axis II: Personality Disorder Not Otherwise Specified (primary diagnosis) with mixed features

Axis III: First Trimester Pregnancy

Axis IV: Childhood sexual abuse and rape, chronic learning disabilities, frequent changes of romantic partners, financial instability, limited mental health treatment, chronic disability

Axis V: Current GAP'62

Id., 8.

25. On December 10, 2007, DCF filed its petitions to terminate the rights of each parent to each child.³ In each such TPR petition DCF alleged that in violation of General Statutes § 17a-112(j)(3)(B), the mother of Andrew, Alexis and Stacyjanira failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of each of them, the mother could assume a responsible position in each of their lives. On December 10, 2007, Andrew was five years old and he had been in DCF care for almost two years. Alexis was almost three years old and he also had been in DCF care for almost two years. Stacyjanira was approximately seventeen months old and she had been in DCF care from when she was two days old.

3 Practice Book § 35a-7A(a) provides:

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

In Ground (B) cases, a court may consider events subsequent to the filing date of the petitions, but it does not have to do so. In re Jennifer W., 75 Conn.App. 485, 494-95 (2003); In re Selena O., 104 Conn.App. 635, 646 (2007); In re Nelmarie O., 97 Conn.App. 624, 628, 905 A.2d 706 (2006); In re Stanley D., 61 Conn.App. 224, 230 (2000); and In re Amber B., 56 Conn.App. 776, 785, 746 A.2d 222 (2000).
The social study in support of termination of parental rights sets forth the parents' circumstances and, inter alia, the mother's and the father's failure to complete services necessary for reunification prior to and as of DCF's December 10, 2007, filing of the TPR petitions. See infra.

In the TPR petitions for Alexis and Stacyjanira DCF alleged that in violation of General Statutes § 17a-112(j)(3)(B), the father of Alexis and Stacyjanira failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of each of them, the father could assume a responsible position in each of their lives.

In the TPR petition for Andrew DCF alleged that in violation of General Statutes § 17a-112(j)(3)(D), the named putative father of Andrew, with respect to whom there was no admission of or DNA confirmation of paternity, had no ongoing parent-child relationship with Andrew that ordinarily develops as a result of a parent having met on a day to day basis, the physical, emotional, moral or educational needs of Andrew, and to allow further time for the establishment or re-establishment of the parent-child relationship would be detrimental to the best interests of the child. As of December 10, 2007, such putative father had not contacted DCF to inquire about Andrew and his whereabouts were unknown to DCF. On January 9, 2008, such named putative father was defaulted for failure to appear for his advisement and plea. Because of a lack of knowledge by DCF about such putative father or his issues and needs for services, no specific steps were ordered. Also, the father did not appear for the TPR hearing.

The court finds by clear and convincing evidence that DCF has proved its Ground D allegation against such father who has not had any role in Andrew's life, and that specific steps were not able to be crafted for and thus were not required for such putative father. See General Statutes § 17a-112(j):

The Superior Court, upon notice and hearing as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that (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 . . .

DCF made reasonable efforts to locate the named putative father, and the court finds that under the circumstances of the father's lack of cooperation with DCF, reunification services were not required.

In a second TPR petition for Andrew DCF alleged that in violation of General Statutes § 17a-112(j)(3)(D), the unknown and unnamed putative father of Andrew ("John Doe"), with respect to whom there was no admission of or DNA confirmation of paternity, had no ongoing parent-child relationship with Andrew that ordinarily develops as a result of a parent having met on a day-to-day basis, the physical, emotional, moral or educational needs of Andrew, and to allow further time for the establishment or re-establishment of the parent-child relationship would be detrimental to the best interests of the child. On January 9, 2008, such unknown putative father was defaulted for failure to appear for his advisement and plea. Because of a lack of knowledge by DCF about such unknown putative father or his issues and needs for services, no specific steps were ordered. Also, the unknown putative father did not appear for the TPR hearing.

The court finds by clear and convincing evidence that DCF has proved its Ground D allegation against such father who has not had any role in Andrew's life, and that specific steps were not able to be crafted for and thus were not required for such putative father. See General Statutes § 17a-112(j) set forth above.

DCF made reasonable efforts to locate the named putative father, and the court finds that under the circumstances of the father's identity being unknown to DCF reunification services with such unknown father were not required.

In such summary of facts DCF alleged that it made reasonable efforts to reunify the father of Alexis and Stacyjanira and the mother of Andrew, Alexis and Stacyjanira with them. Such services included referrals to the Easter Seals parent intervention program, to parenting classes, to Family Services for anger management classes, to the Morris Foundation for substance abuse assessment and treatment, to individual counseling, medication management, and provision of supervised visitation, monthly bus passes and a personal planner to help the mother keep her appointments with service providers. DCF proved the foregoing by clear and convincing evidence. See also exhibit 17, 3:

The Department of Children and Families has provided this family with intensive case management services, supervised visits and transportation throughout the life of the case. The Department referred [the mother and the father] to Family Services for anger management classes in 2006. Referrals were made to Family Services for individual counseling and psychiatric services for mother in 2007 and St. Mary's Behavioral Health for father in 2006 and 2008. The Department also referred both parents to the Family Visitation Center for supervised visits with their children in 2006. The Department referred [the mother and the father] to the Easter Seals Preschool Intervention Program from June 2006 to December 2006 where they had the opportunity to visit with their children and gain hands on parent education. [The mother and the father] were referred and attended parenting class in February and March 2008 at Family Services. The Department has periodically provided the parents with monthly bus passes to assist them with transportation to and from visits and their multiple service and medical providers. [The mother and the father] were referred to the Morris Foundation for substance abuse treatment and were recently sent there for hair tests and urine screens. In June and July 2008 DCF referred [the mother] to Community Services and People Incorporated in Buffalo, NY to be determined eligible for case management services to help her become connected with appropriate service providers for mental health and substance abuse treatment. She was also referred to Elmwood Health Center for counseling. [The father] was connected with Community Services, Evergreen Health Services in Buffalo, NY whom he is already working with to be referred to service providers to address his mental health, substance abuse and medical issues. Furthermore, the Department referred [the mother] to DMHAS but she was found ineligible for services. The Department provided [the mother and the father] with a monthly personal planner to assist them with prioritizing and organizing. More recently the Department also reached out to make referrals for [the mother and the father] to service providers in Buffalo, NY. [The mother] was referred to Elmwood Health Center, Community Services, People Incorporated and Lakeshore Behavioral Health for case management and referrals to appropriate service providers and counseling. [The father] was requested to remain engaged with Evergreen Health Center, Community Services where they were providing him case management services and would be referring him for substance abuse treatment, mental health counseling and continued medical services.

The first DCF treatment worker also testified that she referred the mother to Safe Haven for domestic violence services and to address the issues surrounding the sexual abuse of Sylvia by the father, that the mother knew where the agency was located, and that the mother did not follow up to obtain services.

DCF made reasonable efforts for reunification by offering, referring to and providing services to each parent before and after the filing of the TPR petitions, both in Connecticut when the parents resided in Connecticut and in New York when the parents resided there.

26. On September 5, 2008, DCF filed motions to review the permanency plan for each child. The goal of each plan was the termination of parental rights and adoption.

27. On September 8, 2008, the mother filed an objection to each such permanency plan. She did not set forth any specific reason for her objection. She proposed a transfer of guardianship of each child to one of two named persons.

28. On September 15, 2008, the father filed an objection to each such permanency plan for Alexis and Stacyjanira. He did not set forth any specific reason for his objection but instead he suggested a transfer of guardianship to a paternal relative in the best interest of each of the "three (3) full-siblings . . ." although there are only two full siblings in this case, Alexis and Stacyjanira.

29. Prior to DCF filing the TPR petitions on December 10, 2007, the mother and the father failed to benefit from the offered, referred and provided services to rehabilitate to the point where either could adequately parent any of such children given the needs of such children. After the removal of Sylvia, Andrew and Alexis on December 27, 2005, and of Stacyjanira on July 13, 2006, the mother and the father had two additional children that, under the supervision of the New York child protection authorities, they placed with a paternal relative almost from their birth, in recognition of their inability to care for them. In In re Halle T., 96 Conn.App. 815, 835, 902 A.2d 670 (2006), cert. denied, 280 Conn. 924 (2006), the Appellate Court explained the failure to rehabilitate requirements as follows:

Failure to achieve a sufficient degree of personal rehabilitation is one of the seven statutory grounds on which parental rights may be terminated under § 17a-112(j)(3). We have stated that [p]ersonal rehabilitation as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent . . . [Section 17a-112] requires the trial court to analyze the [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 . . .

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

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

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

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

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

In re Halle T., supra, 96 Conn.App. at 835-36.⁴ The same point is also set forth in In re Shyliesh H., 56 Conn.App. 167, 179-80, 743 A.2d 165 (1999) and in In re Danuael D., 51 Conn.App. 829, 840, 724 A.2d 546 (1999).

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

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

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

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

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

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

In re Halle T., supra, 96 Conn.App. at 837-38. The mother's and the father/stepfather's unwillingness or inability to accept responsibility for the events that led to the removal of the children and to work to address their problems and issues so that the children would be safe with and protected by one or both of them is evidence of their failure to rehabilitate pursuant to General Statutes § 17a-112(j)(3)(B) prior to DCF's filing of the TPR petitions. See also Practice Book § 35a-7A (fn 1, supra).

In July 2007, the parents left Connecticut for Buffalo, New York, so the mother could give birth to a child (Edwin) where Connecticut DCF did not have jurisdiction. The parents missed approximately three months of visits with Andrew, Alexis and Stacyjanira. In September 2007, the parents returned to Connecticut without Edwin. In October and November 2007, they returned to New York for proceedings concerning Edwin's placement with paternal relatives in Buffalo and missed another month of visits. The parents' travel to, subsequent relocation to Buffalo and cessation of regular and meaningful contact with the children after the December 10, 2007, filing of the TPR petitions is evidence of their choice to place their circumstances and life choices before those of the children, and of their failure to rehabilitate to the point where they could provide adequate care to the children based on the children's needs by the time of the May 28, 2009, TPR hearing. However, the father has a life-threatening illness that became known to DCF after the father returned to New York and he has had a need to focus full-time on his own medical and mental health issues, although he has not made progress on overcoming his substance abuse issues.

The mother commented to providers that she was participating in various services primarily as a way to have her children returned to her instead of accepting that she had a need for such services, or that she was "there" for services because DCF or the court sent her. See, e.g., Catholic Charities Assessment and Master Treatment Plan, exhibit 9, page 1: "The court is sending me here." When asked about her reason for coming for individual counseling, she responded to a Catholic Charities worker: "In my opinion, nothing." Id. The intake worker noted: "[The mother] does not feel she needs counseling." Id.

Since 2005 the mother's primary focus has been on the father and on maintaining her relationship with him.

Instead of making efforts after the December 10, 2007, filing of the TPR petitions to have more contact with the children, as many parents facing termination of the parental rights do, the mother and the father moved approximately 400 miles from the city in Connecticut in which they were living to Buffalo, New York. The parents thus conceded the care of their children to the foster parents with whom they were living and ceased to be a presence in their lives soon after the filing of the TPR petitions.

30. The court finds that the level of rehabilitation the mother has achieved falls short of that which would encourage a belief that at some reasonable future date she can assume a responsible position in her children's lives. The court also finds that the level of rehabilitation the father has achieved falls short of that which would encourage a belief that at some reasonable future date he can assume a responsible position in his children's lives. It is not in the best interest of any of the children to be reunified with either parent.

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

GENERAL STATUTES § 17A-112(k) FINDINGS: CT Page 9423

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

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

(A) The mother has been offered and/or has received individual services and services relating to her children from or facilitated by DCF for purposes of reunification. (Exhibit 17, 3-6.) Such services have included general reunification services, mental health services, a court-ordered psychological and a psychiatric evaluation, individual therapy, parenting classes and anger management classes, substance abuse services, in-home services, visitation, transportation and help with housing issues.

The father has been offered and/or has received individual services and services relating to his children from or facilitated by DCF for purposes of reunification. (Exhibit 17, 6-9.) Such services have included general reunification services, mental health services, a court-ordered psychological evaluation, individual therapy, parenting classes and anger management classes, substance abuse services, in-home services, visitation, transportation and help with housing issues.

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

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

medical and dental services plus an MDE;

reunification services;

supervised visitation;

transportation;

foster care services;

court-ordered psychological evaluation;

educational services;

therapy; and

administrative and case management services.

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

2. Whether DCF has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980 as amended.

DCF has made efforts that were reasonable under the circumstances to reunite the mother with each of the children and the father with each of the children. See section 1 above and other discussions of reasonable efforts throughout this memorandum of decision. The reasonable efforts made and facilitated by DCF with respect to services for the mother and the father were timely and adequate to address the issues that led to DCF involvement with each of them and to address the issues that continued or arose after such DCF involvement. Unfortunately, the mother was unable to appreciate, understand and/or accept the existence of her personal and parenting problems, and to acknowledge her continuing need for services.

The father was unable or unwilling to acknowledge his use of and dependence on substances and his minimal compliance with most offered services was an impediment to his treatment and reunification.

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

On January 6, 2006 and September 8, 2006, the court ordered specific steps for the mother and for the father "to safely . . . regain the custody of each such child . . ."

The mother did comply with some of the steps, including cooperation with a court-ordered evaluation that occurred in June 2006, and a psychiatric evaluation. However, the mother did not comply with other recommended services such as individual counseling. (Exhibits 11, 20.) For example, in 2006, Family Service of Greater Waterbury wrote to the mother after the mother missed individual counseling sessions and did not telephone to cancel her sessions. (Exhibit 11.) Because of the mother's lack of interest and cooperation, such services were terminated.

In 2007 the mother was referred to Catholic Charities for individual counseling. Id. She was diagnosed with PTSD, with the need to rule out Mood Disorder NOS, Mild Mental Retardation and Personality Disorder NOS. Id. The mother refused to engage in counseling services but she was willing to accept assistance for her housing issues. Id.

As set forth above, the mother's response to the specific steps is described in the DCF study in support of its permanency plan, exhibit 17, 3-6. The mother completed anger management classes, but after 2005 she missed appointments at services such as substance abuse screening, individual counseling, visitation, and parenting classes.

When the mother did attend services, she did not benefit from them. Id., 4. For example, the anger management classes were not effective because in August 2006, at a third-party supervised visitation facility the mother stated that she was taking Stacyjanira home with her; she assaulted a worker who was caring for Stacyjanira and such facility then discharged her.

On July 16, 2008, the mother was tested for substances and she tested positive for marijuana. Id., 5.

The father also failed to comply with many of the specific steps. Id., 6-9. He missed many visits with his children. Id., 6. He missed parenting classes and failed to attend substance abuse treatment sessions. Id., 6-7. He failed to attend individual counseling. Id., 7.

After 2005 the father continued to test positive for illegal substances including cocaine and marijuana.

After 2005 neither parent provided financial support for their children.

Prior to December 10, 2007, each parent was unable or unwilling to benefit from reunification services.⁵ After December 10, 2007, the parents eventually became involved in some services in New York but they were unable to benefit from those services at a level of rehabilitation to care for their children given such children's individual needs, especially since the parents' absence from them after August 2008, seriously weakened any bond that any of the children had with the parents.

5 See General Statutes § 17a-112(j)that provides in part:

The Superior Court, upon notice and hearing as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that (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 . . .

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

As set forth on pages 3 and 4 supra, the children are no longer bonded to the mother. Prior to May 2009, the mother had not visited with any of her children since August 2008. (Exhibit 18, 5.) She had two visits with the children in May 2009. Id. The current DCF worker described such May 2009, visits with Stacyjanira as follows:

The children do not recognize her as their mother and do not run to her excited to see her. They are more excited to walk in the visiting room looking for toys than seeing their mother. Stacyjanira allows her mother to pick her up but does not reach out to her or want her to hold her at all. She comes to this worker for comfort. Stacy does not show any emotion towards her mother at all. When [the mother] picks her up, she just looks at her. Eventually she will put her head on her shoulder but it is more a relaxing reaction than a nurturing moment. Stacyjanira spends more time with this worker than her mother and engages this worker in activities with her. When this worker tells her to play with "mommy," she looks at this worker as if she does not know what this worker is talking about . . .

Id.

Such worker also described the mother's visits with Alexis:

. . . [The mother] calls Alexis "junior" the whole time. He does not acknowledge this nickname or respond to it at all. Alexis talks about his "mommy" in visits referring to his foster mother, not his biological mother. He asks where she is and when she will be coming back. Alexis is more interested in the toys than anything else . . .

Id.

Andrew recognizes his mother but in a negative way:

. . . The only one who calls [the mother] "mommy" is Andrew who is used to speaking to her periodically on the telephone when she calls his foster home. When he uses the term "mommy" he says it louder and harsher than the rest of the sentence. Sometimes he will say "mommy" and when [the mother] responds, he has to think about what he wanted to say as if he was just saying the word "mommy" without any meaning behind it. He especially likes to say "mommy" to get his mother's attention when he wants to get one of his siblings in trouble . . .

Id., 5-6.

The father has not visited with the children since August 2008. They are no longer bonded to him. Stacyjanira has not had a parent-child relationship with him.

The children had a visitation relationship with the mother and the father that has not been regular because the mother and the father missed scheduled visits or were not available for visits because they were approximately 400 miles away in Buffalo, New York. Moreover, neither the mother nor the father has been the day to day caretaker of any of the children since December 27, 2005, approximately two years prior to the filing of the TPR petitions (approximately seventeen months for Stacyjanira) and forty-one months prior to the last day of the trial on May 29, 2009. As of the filing of the TPR petitions, the mother was no longer the psychological parent of any of the children.

Thus, none of the children currently has a primary parent-child relationship with either biological parent.

As of the dates of the trial, each such child was bonded to their respective foster parents.

Such foster parents provide a positive, stable environment, and they currently provide for the needs of each child, work and play with each of them in their respective homes, and bring them to the out-of-home services they require and the out-of-home activities they have.

5. The age of each of the children:

Andrew is six years old.

Alexis is four years old.

Stacyjanira is two years old.

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

As set forth supra the mother has moved to Buffalo, New York and between August 2008, and May 2009, she failed to maintain contact with the children except for occasional telephone calls to Andrew. Since August 2008, the father has not had contact with the children.

Between December 2007, and May 2009, the father had only occasional contact with DCF. DCF has had contact with the father's service providers in Buffalo.

After the filing of the TPR petitions each of the parents eventually began to participate in some services in Buffalo. See, e.g., exhibit 18, 3. However, the mother admitted to continuing domestic violence between her and the father, id., 4, which domestic violence continued when the parents returned to Connecticut in early May 2009. Id., 5. The mother remained inconsistent in her participation in services. Id. Since he returned to Connecticut, the father has not attended any drug tests as requested by DCF. Id., 6. In January 2009, the father was discharged from substance abuse treatment in Buffalo for noncompliance. Id. He had not attended consistently and he had three positive screens for marijuana. Id., 6-7.

7. The extent to which a parent has been prevented from maintaining a meaningful relationship with the children by the unreasonable act or conduct of the other parent of the children, or the unreasonable act of any other person or by the economic circumstances of the parent.

There was no evidence presented that either the mother or the father has been prevented from maintaining a relationship with any of the children by any unreasonable act or conduct of any other person. Neither parent has paid support for either of the children or regularly provided clothes or other items to either of the children since their December 2005, removal.

LAW APPLICABLE TO TERMINATION OF PARENTAL RIGHTS CASES:

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

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

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

General Statutes § 17a-112(j)(3) provides that three prerequisites to a determination that any TPR petition should be granted are that the court must find by clear and convincing evidence (1)

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

In this case, prior to December 10, 2007, and prior to the end of the trial, both the father and the mother were unable or unwilling to benefit from reunification services offered by DCF in Connecticut and in New York. The second requirement is that the court must find by clear and convincing evidence that

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

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

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

The ground alleged against each parent in this case is:

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

(The official form does not include the bracketed language in the Ground (B)(i) allegations. See In re Nicholas C., Docket No. D03-CP07-002405-A, Superior Court for Juvenile Matters, Child Protection Session at Middletown (amended decision) (Bear, J., May 21, 2009). See also Public Act 98-241, § 8.

This court finds by clear and convincing evidence that each child (i) has been found by the Superior Court for Juvenile Matters to be neglected in a prior proceeding;⁶ the parent of each such child has been provided specific steps to take to facilitate the return of each such child to the parent pursuant to General Statutes § 46b-129; and each parent has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of each such child, such parent could assume a responsible position in the life of the child.

6 A neglect case is initiated by a petition. General Statutes § 46b-129(a). A termination of parental rights case is initiated by a separate petition. General Statutes § 17a-112(a).

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

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

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

2. Explanation of Ground B, failure to rehabilitate:

CT Page 9431

A. General standards:

See pages 17-21, supra.

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

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

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

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

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

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

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

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

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

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

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

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

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

In re Jennifer W., 75 Conn.App. 485, 499, 816 A.2d 697 (2003), cert. denied, 263 Conn. 917, 821 A.2d 770 (2003); see also In re Victoria B., 79 Conn.App. 245, 254, 829 A.2d 855 (2003).

In an earlier decision, In re Tabitha P., 39 Conn.App. 353, 361, 664 A.2d 1168 (1995) the Appellate Court expressed this requirement as follows:

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

See also In re Emerald C., 108 Conn.App. 839, 858-59 (2008), where the trial court considered the father's abandonment of older children in determining whether he would parent Emerald. As set forth above, since December 27, 2005, through their voluntary transfer of custody the mother and the father in this case have at or close to their birth turned over two children born after Stacyjanira to the care of paternal relatives, thus at least implicitly acknowledging their unwillingness or inability to care for them.

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

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

In re Anna Lee M., 104 Conn.App. 121, 123 (2007), cert. denied, 284 Conn. 939 (2007). In this case, the entire picture of the parent-child relationship includes years of the children's exposure to domestic violence, substance abuse, lack of provision of basic care, and in the case of Sylvia sexual molestation.

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

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

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

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

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

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

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

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

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

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

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

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

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

General Statutes § 46b-129, pertaining to neglect and orders of temporary custody, contains three references to "specific steps." The first reference is in subsection (b): . . . Upon issuance of an ex parte order, the court shall provide to the commissioner and the parent or guardian specific steps necessary for each to take to address the ex parte order for the parent or guardian to retain or regain custody of the child or youth.

The second reference is in subsection (d):

. . . The court, after a hearing pursuant to this subsection [relating to the preliminary hearing on the order of temporary custody or order to appear or the first hearing on a petition filed pursuant to § 46b-129(a) pertaining to neglect, uncared-for or dependency petitions] shall order specific steps the commissioner and the parent or guardian shall take for the parent or guardian to regain or to retain custody of the child or youth . . .

The third reference is in subsection (3) which provides that if a child is committed to DCF after being adjudicated neglected or uncared for "the court shall order specific steps that the parent must take to facilitate the return of the child or youth to the custody of such parent."

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

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

Practice Book § 33a-7 provides:

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

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

The Superior Court, upon notice and hearing as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that . . . (3) . . . (B) the child (i) has been found by the Superior Court or the Probate Court to have been neglected or uncared for in a prior proceeding, or (ii) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . (Emphasis supplied.) The official form for the petition for termination of parental rights utilized by DCF (JD-JM-40 Rev. 9-2006) separately sets forth Ground B(i) and Ground (B)(ii) bases for termination, so that DCF can select one, the other or both as a basis for termination. The official form does not include the italicized language in the Ground (B)(i) allegations. See In re Nicholas C., Docket No. D03-CP07-002405-A, Superior Court for Juvenile Matters, Child Protection Session at Middletown (amended decision) (Bear, J., May 21, 2009) and page 37, supra.

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

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

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

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

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

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

In this case during the crucial periods after the removal of the children and before the adjudication of neglect, and then after such adjudication and before the filing of the TPR petitions, each parent at best minimally complied with the specific steps in a substantive sense.

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

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

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

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

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

Id., 591-92.

D. Reasonable Efforts by DCF to Facilitate Reunification:

With respect to reasonable efforts, in the context of General Statutes § 17a-112(j)(3) such phrase means doing everything reasonable, and DCF is not required to provide every service that is possible. In re Melody L., 290 Conn. 131, 147, 962 A.2d 81 (2009). Given the mother's refusal during the crucial period after Sylvia, Andrew and Alexis were removed and after Stacyjanira was born to engage in substance abuse assessments and treatment, in individual counseling, and to acknowledge her and the father's issues and problems, and the father's similar lack of acknowledgement and cooperation, DCF's reunification efforts including offers of services to each parent were reasonable, and substantial.

Reunification efforts generally consist of relevant useful services for each parent and for each of the children. Such services that are offered are based on the needs and issues that have led to the removal of the children and/or the filing of neglect petitions. In this case the primary parental issues were substance abuse, mental health issues, cognitive limitation, inadequate parenting and domestic violence. The children were denied proper care and lived in conditions and circumstances injurious to their well being.

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

In In the Interest of Cameron W., 2006 Ct.Sup. 2805, 2833, No. M08-CP05-009919-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Wilson, J., March 13, 2007) Judge Wilson summarized Appellate Court decisions where DCF efforts were found to be reasonable:

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

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

The department is required only to make "reasonable efforts." It is axiomatic that the law does not require a useless and futile act. See Connecticut Light Power Co. v. Costello, 161 Conn. 430, 441, 288 A.2d 415 (1971). Although DCF is required to do "everything reasonable" in its reunification efforts, DCF need not be perfect in its efforts to provide reunification services for a court to find that it has made reasonable efforts. See In re Melody L., supra, 290 Conn. at 147:

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

3. The Best Interest of the Child Requirements:

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

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

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

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

As has been set forth above:

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

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

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

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

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

The seven required statutory findings⁷ are not specified in General Statutes § 17a-112(k) as the only parameters for determining the best interest of the child in a TPR context. Instead, the focus of many of such required statutory findings is to insure that the parents' rights and interests appropriately and properly have been considered.

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

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

The Appellate Court recently has set forth the best interest standards of the child in a TPR context as including ". . . the child's interests in sustained growth, development, well-being, and continuity and stability of its environment . . ." In re Ryan R., 102 Conn.App. 608, 625-26, 926 A.2d 690 (2007); see also In re Janazia, supra, 112 Conn.App. at 97; In re Cameron C., 103 Conn.App. 746, 759, 930 A.2d 826 (2007), cert. denied, 285 Conn. 906 (2008), and In re Brianna C., supra, 98 Conn.App. at 804.⁸ Continuity and stability of environment are elements of permanency. The Appellate Court stated that in making such best interests determination, the trial court should "consider and make" the required written General Statutes § 17a-112(k) findings:

8 The trial court's judgment based on the reliable evidence as to the ultimate custodial placement that is in the best interest of the child or children, including whether DCF should be appointed as statutory parent, is entitled to "great weight." See In re Antony A., 112 Conn.App. 643, 653-54 (2009):

We begin with the standard of review. "To determine whether a custodial placement is in the best interest of the child, the court uses its broad discretion to choose a place that will foster the child's interest in sustained growth, development, well-being, and in the continuity and stability of its environment . . . We have stated that when making the determination of what is in the best interest of the child, [t]he authority to exercise the judicial discretion under the circumstances revealed by the finding is not conferred upon this court, but upon the trial court, and . . . we are not privileged to usurp that authority or to substitute ourselves for the trial court . . . A mere difference of opinion or judgment cannot justify our intervention. Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference . . . In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did . . . G]reat weight is given to the judgment of the trial court because of the court's] opportunity to observe the parties and the evidence . . . Appellate courts] are not in a position to second-guess the opinions of witnesses, professional or otherwise, nor the observations and conclusions of the [trial court] when they are based on reliable evidence." (Citations omitted; internal quotation marks omitted.) In re Karl J., 110 Conn.App. 22, 26, 954 A.2d 231, cert. denied, 289 Conn. 954, 961 A.2d 420 (2008).

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

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

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

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

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

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

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

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

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

4. DCF as Statutory Parent:

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

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

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

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

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

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

In its TPR petitions, ⁹ DCF has requested that it be appointed as statutory parent. General Statutes § 17a-112(o) provides:

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

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

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

5. Stability, Permanence and Closure for the Child:

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

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

In re Davonta V. supra, 98 Conn.App. at 53. See infra, 61. The Appellate Court also referred to stability and permanency concepts in CT Page 9450 Alejandro L.:

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

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

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

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

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

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

The foregoing requirements were discussed in detail and explained at length in In re Davonta V., 285 Conn. 483, 494-97, 940 A.2d 733 (2008):

Finally, we agree with the Appellate Court that the trial court, in crediting the testimony of the child welfare professionals and terminating the respondent's parental rights on the basis of Davonta's need for stability, permanence and closure, was not merely invoking "empty incantations," as the respondent has claimed. In re Davonta V., supra, 98 Conn.App. 53. This court has "noted consistently the importance of permanency in children's lives. In re Juvenile Appeal (Anonymous), 181 Conn. 638, 646, 436 A.2d 290 (1980) (removing child from foster home or further delaying permanency would be inconsistent with his best interest); In re Victoria B., 79 Conn.App. 245, 263, 829 A.2d 855 (2003) (trial court's findings were not clearly erroneous where much of child's short life had been spent in custody of [commissioner] and child needed stability and permanency in her life); In re Teshea D., [ 9 Conn.App. 490, 493-94, 519 A.2d 1232 (1987)] (child's need for permanency in her life lends added support to the court's finding that her best interest warranted termination of the respondent's parental rights). Virtually all experts, from many different professional disciplines, agree that children need and benefit from continuous, stable home environments." (Internal quotation marks omitted.) In re Jeisean M., supra, 270 Conn. 400-01.

"[S]table and continuous care givers are important to normal child development. Children need secure and uninterrupted emotional relationships with the adults who are responsible for their care." 3 D. Kramer, Legal Rights of Children (2d Ed. Rev. 2005) § 29:11, p. 185; see also J. Goldstein, A. Solnit, S. Goldstein A. Freud, The Best Interests of the Child: The Least Detrimental Alternative (1996) p. 19 ("[c]ontinuity of relationships is essential for a child's healthy development"); see also In re Hanks, 553 A.2d 1171, 1178 (Del. 1989) ("[N]o child can grow emotionally while in limbo, never really belonging to anyone except on a temporary and ill-defined or partial basis . . . To grow, the child needs at least the promise of permanency in relationships and some continuity of environment." [Internal quotation marks omitted.]). "Repeatedly disrupted placements and relationships can interfere with the children's ability to form normal relationships when they become adults." 3 D. Kramer, supra, p. 185.

In regard to children who have bonded with their foster parents, "[o]nce new psychological relationships form, separation from the new parents becomes no less painful and no less damaging to a child than separation from natural or adoptive caregiving parents. Indeed, to the extent that such separations are repeated (as in multiple foster care placements), they make the child more vulnerable and make each subsequent opportunity for attachment less promising and less trustworthy than prior ones. J. Goldstein, A. Solnit, S. Goldstein A. Freud, supra, pp. 104-05. Termination of a biological parent's rights, by preventing further litigation with that parent, can preserve the stability a child has acquired in a successful foster placement and, furthermore, move the child closer toward securing permanence by removing barriers to adoption. See 3 D. Kramer, supra, § 28:2, p. 17. Even if no adoption is forthcoming, termination can add stability and lessen disruption because a parent whose rights have been terminated no longer may file a motion to revoke the commitment of the child to the custody of the commissioner; see General Statutes § 46b-129(m); or oppose an annual permanency plan. See General Statutes § 46b-129(k).

The testimony before the trial court, on which it was privileged to rely, essentially reflected these considerations in relation to Davonta's best interest, specifically, his need for permanence and stability. There also was evidence before the court as to Davonta's previous placements and the trauma he experienced when they were disrupted. Moreover, the respondent's testimony indicated that she would pursue regaining custody of Davonta in the future, although at the time of her testimony, he had not lived with her for more than four years and had refused all contact with her for nearly one year. In light of these considerations, we are unable to conclude that the evidence of Davonta's need for permanence and stability, viewed in the context of the entire record, does not clearly and convincingly establish that termination of the respondent's parental rights was in Davonta's best interest. Consequently, the trial court's finding as to Davonta's best interest is not clearly erroneous. See Adoption of Nancy, 443 Mass. 512, 517, 822 N.E.2d 1179 (2005) (terminating father's parental rights where children were happy in foster care, though no adoptions imminent and children's counsel opposed termination, because "[s]tability in the lives of children is important, particularly in a case that has continued for a long period of time in the hope that the father could and would successfully rehabilitate himself . . . [and in which] permanence and stability . . . will be eased by termination of their father's rights" [citations omitted]); In re Custody Parental Rights of F.M., 305 Mont. 189, 193, 24 P.3d 208 (2001) (crediting testimony of experts that termination of mother's parental rights and children's placement in long-term foster care in children's best interests because they "are in need of permanency and stability in their lives in order to effectively progress in their therapy and the continued fantasy of being returned to their mother's care someday was detrimental to the therapeutic process").

6. The Standard of Clear and Convincing Evidence:

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

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

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

(Footnotes omitted.)

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

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

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

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

8. Weight to be given to Testimony, including from Court-Appointed Psychologists and other Experts:

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

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

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

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

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

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

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

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

The same approach is applicable in a family law case, where there may also be circumstances that may have changed after the examination report was completed:

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

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

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

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

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

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

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

Previously, we held that "[t]he credibility of expert witnesses and the weight to be accorded their testimony are within the province of the trier of facts, who is privileged to adopt whatever testimony he reasonably believes to be credible." (Internal quotation marks omitted.) Transportation Plaza Associates v. Powers, 203 Conn. 364, 378, 525 A.2d 68 (1987). Furthermore, it is well settled that the trial court possesses discretion in ruling, not only on the qualifications of expert witnesses, but on the admissibility and weight of their opinions and testimony. State v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387 (1986). "As the witness qualified as an expert, any objection to his testimony would go to its weight rather than to its admissibility." (Emphasis added; internal quotation marks omitted.) State v. Avila, 166 Conn. 569, 576, 353 A.2d 776 (1974). "It is rare for this court to find that a trial court has erred in a ruling permitting expert testimony." State v. John, 210 Conn. 652, 677, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S.Ct. 84, 107 L.Ed.2d 50 (1989) . . . In summary, it is the function of each trial court to determine the credibility of each witness and the weight to be given to each statement of each witness, whether or not that witness has been qualified as an expert, in the process of interpreting and evaluating the evidence before it. See State v. Richards, 113 Conn.App. 823, 832 (2009).

9. The Balancing of the Legitimate Interests of the Parents, Children and the State of Connecticut: CT Page 9459

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

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

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

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

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

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

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

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

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

Nonetheless, we have recognized that a state is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized.

See Wisconsin v. Yoder, supra, at 230; Prince v. Massachusetts, supra, at 166 . . .

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

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

To be sure, the presumption that a parent is acting in the best interests of his child must be a rebuttable one, since certainly not all parents are actuated by the unselfish motive the law presumes. Some parents are simply unfit parents. But Georgia clearly provides that an unfit parent can be stripped of his parental authority under laws dealing with neglect and abuse of children.^fn7

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

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

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

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

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

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

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

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

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

In an earlier decision, In re Juvenile Appeal (83-CD), 189 Conn. 276, CT Page 9464 282-84, 293, 455 A.2d 1313 (1983), the Supreme Court rejected a respondent parent's argument that General Statutes § 46b-129(b) was unconstitutional because it was an impermissible infringement on such parent's right to family integrity. Recently in Fish v. Fish, 285 Conn. 24, 73-74, 939 A.2d 1040 (2008), the Supreme Court balanced parents' constitutional liberty interests against a child's welfare and safety to apply the regular civil fair preponderance standard of proof in third-party custody proceedings:

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

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

This is a case where Sylvia, Andrew and Alexis were removed from the custody of the mother and the father on December 27, 2005, under a ninety-six hour hold. Andrew was three years old, and Alexis was one year old. This was the last time that each child was in the custody of the mother or the father. Stacyjanira was removed from such parents on July 13, 2006, when she was one day old. This was the last time that she was in the custody of the mother or the father. Prior to May 2009, the mother had not visited with any of her children since August 2008. (Exhibit 18, 5.) She had two visits with the children in May 2009. Id. The current DCF worker described such visits with Stacyjanira as follows:

The children do not recognize her as their mother and do not run to her excited to see her. They are more excited to walk in the visiting room looking for toys than seeing their mother . . .

See page 3, supra.

The father has not visited with Stacyjanira since April 2008. (Exhibit 18, 5.) He has not visited with Alexis since August 2008. Id. He did not visit with either child during May 2009, when he was in Connecticut. Id.

On December 27, 2005, the court granted DCF temporary custody of Andrew and Alexis. On December 29, 2005, DCF filed neglect petitions and ex parte motions for temporary custody. On such date, the court granted ex parte orders of temporary custody. On January 6, 2006, each such order was sustained and the court issued preliminary specific steps to each parent to facilitate possible reunification.

On July 13, 2006, one day after Stacyjanira was born, DCF filed a neglect petition and an ex parte motion for temporary custody. On such date, the court granted an ex parte order of temporary custody, and on September 8, 2006, such order was sustained.

On May 29, 2007, Sylvia, Andrew, Alexis and Stacyjanira were adjudicated neglected and each was committed to the care, custody and guardianship of DCF. Beginning on December 27, 2005, and for in excess of forty-one months thereafter to date, the family has not been an intact family. The parents thus do not have the benefit of any presumption that they are fit to care for such children. Compare Roth v. Weston, 259 Conn. 202, 216, 789 A.2d 431 (2002). See also Dutkiewicz v. Dutkiewicz, 289 Conn. 362, 378 n. 11 (2008):

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

Former Chief Justice Peters has noted:

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

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

WITH RESPECT TO THE MOTHER AND THE FATHER OF ANDREW, ALEXIS AND STACYJANIRA, DCF HAS PROVED, BY CLEAR AND CONYITNCING EVIDENCE, THE GROUND B(i) ALLEGATIONS OF SUCH PETITIONS.

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

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

(2) there is no other action pending in any other court affecting custody of Andrew, Alexis and Stacyjanira known to this court. Neither the mother nor the father has claimed to be affiliated in her or his lineage with any Native American tribe;

(3) on May 29, 2007, Andrew, Alexis and Stacyjanira were adjudicated neglected, and each was committed to the care, custody and guardianship of DCF;

(4) the mother of Andrew, Alexis and Stacyjanira, who were adjudicated neglected, is unable or is unwilling to and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the ages and needs of Andrew, Alexis and Stacyjanira as of the date of the filing of the TPR petitions or as of May 29, 2009, the last date of the TPR hearing, she could assume a responsible position in the life of Andrew, Alexis and Stacyjanira as their day-to-day full-time parent;

(5) prior to and after filing its December 10, 2007, termination petitions, DCF made reasonable efforts to reunify the mother with Andrew, Alexis and Stacyjanira through offers of and provision of services, but the mother was not able to reach a point after the May 29, 2007, adjudications of neglect where reunification with her was in best interest of Andrew, Alexis and Stacyjanira;

(6) the father of Andrew, Alexis and Stacyjanira, who were adjudicated neglected, is unable or is unwilling to and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the ages and needs of Andrew, Alexis and Stacyjanira as of the date of the filing of the TPR petitions or as of May 29, 2009, the last date of the TPR hearing, he could assume a responsible position in the life of Andrew, Alexis and Stacyjanira as their day-to-day full-time parent;

(7) prior to and after filing its December 10, 2007, termination petitions, DCF made efforts that were reasonable to reunify the father with Andrew, Alexis and Stacyjanira through offers of and provision of services, but the father was not able to reach a point after the May 29, 2007, adjudications of neglect where reunification with him was in best interest of Andrew, Alexis and Stacyjanira; and

(8) there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day-to-day basis the physical, emotional, moral and educational needs of the child between Andrew and either the putative father named in one of the DCF petitions concerning him or the unnamed John Doe father referred to in the other such petition and to allow further time for the establishment of such parent-child relationship would be detrimental to Andrew's best interest.

THE BEST INTEREST OF ANDREW, ALEXIS AND STACYJANIRA:

The court has considered the best interest of Andrew, Alexis and Stacyjanira. The court has considered whether it is in the best interest of any of Andrew, Alexis and Stacyjanira to be returned to the mother or to the father, including whether the mother or the father reasonably could be expected and relied upon to provide the safe, secure, nurturing, stable and permanent environment idealized in the statutes and case law, and the court has considered Andrew's, Alexis' and Stacyjanira's

". . . interests in sustained growth, development, well-being, and continuity and stability of [their] environment . . ." In re Ryan R., 102 Conn.App. 608, 625-26 (2007). Since December 27, 2005 for Andrew and Alexis, and since July 13, 2006, for Stacyjanira, the mother and the father have not provided and currently are unable to provide each of them with such safe, secure, nurturing, stable and permanent environment that addresses and is responsive to their individual or special circumstances and needs. On the other hand, in the care of their respective non-relative foster parents, each has been and is receiving love, nurturing and appropriate care in a stable environment.

In accordance with applicable federal and state law, the court finds, by clear and convincing evidence, that it is in the best interest of Andrew, Alexis and Stacyjanira and that it is necessary for each of their well-being, growth, development, safety, security, stability, continuity, consistency and permanency, and for closure, that the rights of the biological mother and the biological father be terminated.

CONCLUSION AND ORDERS:

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

(a) DCF proved by clear and convincing evidence that the mother and the father of Andrew, Alexis and Stacyjanira, each of whom was adjudicated neglected on May 29, 2007, had failed as of December 10, 2007, the date of the TPR petitions (and as of May 29, 2009, the end of the TPR hearing), to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the ages and needs of Andrew, Alexis and Stacyjanira and their individual and special circumstances and needs, either could assume a responsible continuous parenting position in Andrew's, Alexis' and Stacyjanira's lives¹⁰; and

10 See, e.g., In re Halle T., supra, 96 Conn.App. at 835-36 (page 22, supra):

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

For example, although given opportunities to do so, the mother and the father were unable or unwilling to benefit from services to the point where they could provide for the health, safety, well being and needs of the children, and they recognized their inability to provide such care by placing the two children born to them after Stacyjanira in the care of the father's relatives in Buffalo, New York.

(b) it is in the best interest of Andrew, Alexis and Stacyjanira to terminate the parental rights of the biological mother and each respective biological father.¹¹

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

Accordingly, it is hereby ORDERED that the parental rights of the mother and each respective biological father to Andrew, Alexis and Stacyjanira are hereby terminated.

The commissioner of the department of children and families is appointed as the statutory parent of Andrew, Alexis and Stacyjanira. The initial status report concerning Andrew, Alexis and Stacyjanira shall be submitted, as required, within thirty days hereof. Quarterly reports and annual permanency plans shall be submitted as required in accordance with statutory requirements, including those set forth in General Statutes § 17a-112(o).

Judgment shall enter accordingly.