Summary
noting that Department of Children and Families lists both "the parent ha[ving] inflicted severe physical abuse on the child" and "the parent ha[ving] engaged in a pattern of abuse against the child" as circumstances precluding reunification of parent and child
Summary of this case from Safeco Insurance Company of America v. VecseyOpinion
No. H12-CP07-011630-A
June 10, 2008
MEMORANDUM OF DECISION
This is a coterminous neglect and termination of parental rights ("TPR") case.
Practice Book § 35a-3 provides the procedure for the court's consideration of coterminous petitions:
When coterminous petitions are filed, the judicial authority first determines by a fair preponderance of the evidence whether the child is neglected, uncared for or dependent; if so, then the judicial authority determines whether statutory grounds exist to terminate parental rights by clear and convincing evidence; if so, then the judicial authority determines whether termination is in the best interest of the child by clear and convincing evidence. If the judicial authority determines that termination grounds do not exist or termination is not in the best interest of the child, then the judicial authority may consider by a fair preponderance of the evidence any of the dispositional alternatives available under the neglect, uncared for or dependent petition.
General Statutes § 17a-112(1) provides:
Any petition brought by the Commissioner of Children and Families to the Superior Court, pursuant to subsection (a) of section 46b-129, may be accompanied by or, upon motion by the petitioner, consolidated with a petition for termination of parental rights filed in accordance with this section with respect to such child. Notice of the hearing on such petitions shall be given in accordance with sections 45a-716 and 45a-717. The Superior Court, after hearing, in accordance with the provisions of subsection (i) or (j) of this section, may, in lieu of granting the petition filed pursuant to section 46b-129, grant the petition for termination of parental rights as provided in section 45a-717.
See pages 41-59, infra.
On October 30, 2007, the neglect and TPR petitions were filed in the Superior Court for Juvenile Matters ("SCJM") at Hartford, and the case was subsequently transferred to the Child Protection Session at Middletown for trial. Such trial occurred on Monday, May 19, 2008, and on Tuesday, May 20, 2008. The father requested that he be allowed to file a post-trial brief, and such brief was filed on June 4, 2008.
In the neglect petition the commissioner of the department of children and families ("DCF") alleged that Daniel M. ("Daniel") was being denied proper care and attention, physically, educationally, emotionally or morally ("denied proper care"), and that he was being permitted to live under conditions, circumstances or associations injurious to his well-being ("conditions injurious"). As jurisdictional facts DCF alleged that:
A. the mother and the father have a history of domestic violence;
B. the father has a history of sexual abuse;
C. the child was a newborn (on the date of the filing of the petitions he was six days old) and he was completely dependent on a competent care giver.
In the termination of parental rights petition DCF alleged that the mother and the father were unable or unwilling to benefit from reunification efforts and that pursuant to General Statutes § 17a-112(j)(3)(E), each parent of Daniel, a child under the age of seven years who is alleged to be neglected or uncared for, has failed, is unable or is unwilling to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child and such parent's parental rights of another child were previously terminated pursuant to a petition filed by DCF.
Also on October 30, 2007, DCF filed a ten-page single-spaced document entitled "summary of facts to substantiate petition of neglect and termination of parental rights." See Practice Book § 33a-1. Such allegations are incorporated in the petition by reference. Id.
FACTS
This court finds the following facts by clear and convincing evidence:
1. Daniel was born in October 2007, and is seven months old.
2. Prior to Daniel's birth, on May 8, 2006, at a default trial the SCJM (Dannehy, J.) terminated the parental rights of respondent-father to Daniel's older sibling Lidyana M. (Motion for judicial notice, 3.) The mother was present for her trial and was represented by counsel. Id., 2.
3. On May 18, 2006, in a written memorandum of decision, Judge Dannehy terminated the parental rights of respondent-mother to Daniel's older half-siblings, Bianca Z. and Alexander N., and to Daniel's older sibling Lidyana M. Id.
4. Judge Dannehy's decision contained the following facts, inter alia, found by clear and convincing evidence:
On 1/9/04, Bianca disclosed to her maternal aunt, sexual abuse, such as several attempts to fondle her over clothing and placement of a hamster down her pants by her mother's boyfriend, Daniel M., Lidyana's father. Bianca further expressed concerns for her safety, her siblings' safety and her mother's safety in because of Daniel M.'s involvement with the family.
On 1/13/04, Orders of Temporary Custody were granted on behalf of said children. The children were adjudicated neglected and committed to the Commissioner of the Department of Children and Families by the Superior Court for Juvenile Matters on 6/15/04. The court maintained the commitments on 12/14/04. The basis for DCF intervention was predicated upon a complaint by Bianca that she had been sexually abused by . . . Lidyana's father.
At the time of the initial commitment the court issued specific steps. The steps relevant to this inquiry required mother to participate in individual counseling, focusing on domestic violence and non-offender's sexual assault counseling. She was also ordered not to allow any contact between the children and Daniel M.
(Memorandum of Decision, 3.)
[The mother] dropped out of high school in the tenth grade. She has held several jobs throughout her life from working at McDonalds to Job Temps. At the time the petition was filed she was employed at a Subway in Windsor. She apparently is now employed as a housekeeper.
[The mother] met Bianca's father at the age of seventeen in Chicago at a party. They married in 1999 and as far as she knows, they continue to remain legally married. She reported ending the relationship when she caught him being unfaithful. She also reported that there was domestic violence in their relationship and that she had lost a tooth due to his abuse.
The respondent met Alex's father in 2000 while he was self-employed. Ms. R. reported she and Mr. N. were together for about three months, never resided together, and that he left her after she became pregnant.
Ms. R. gave birth to her second child, Alexander on 1/24/02 in Hartford. She came to Connecticut to meet and develop a relationship with her mother and siblings.
She was residing in Hartford, Connecticut when she met [the father] over an Internet chat line in approximately 2002 and moved to Union, New Jersey to reside with him. They moved back to Hartford around October of 2003 when her biological mother promised her an apartment. Mother reported that she and [the father] had to move out because [the father] disapproved of her family's lifestyle and that her family did not get along with him.
(Memorandum of Decision, 4-5.)
5. Judge Dannehy also set forth the following:
The following services were offered to the mother: Interval House for domestic violence, Institute for the Hispanic Family for individual therapy/domestic violence, PIP/CREC parenting skills classes, YWCA-non-offender's treatment program, St. Francis non offender's treatment program, the Village for Families and Children for family therapy, Abundant Life-intensive family reunification, Queen Esther Ministry for mentoring services. The services were appropriate and designed to lead to the reunification of mother and children. The mother however was unable to benefit from the services. At the time of the filing of the petition, mother continued to maintain a relationship with [the father] despite the risk he presented to her and her children. Evidence introduced at the trial shows that she has gained little insight in her duty to protect her children as she continues to engage in conduct that puts her own interests ahead of the needs and safety of her children.
(Memorandum of Decision, 8.)
6. Judge Dannehy further set forth the following:
Based on the evidence introduced at trial it is clear that the respondent mother has not achieved the degree of rehabilitation at the time of the filing the petition, that would put her in position, to resume the role of an effective parent for her children. Specific steps were set for her to facilitate her reunification with her children by addressing her need to protect her children from abuse and domestic violence. Though she was cooperative and participated in most of the programs and counseling, she failed to benefit or achieve a sufficient degree of rehabilitation. DCF and the court advised the respondent on numerous occasions that she had to protect her children from [the father]. As evidenced by her conduct which will be addressed later, she failed miserably and actually attempted to perpetrate a fraud on DCF and the Superior Court. She was consistent and appropriate for the most part in her visitation. Occasionally she failed to focus on her children and recently engaged in conversations with Bianca on future plans following reunification. Such comments are inappropriate: She had also previously confided in Bianca as to her future plans with [the father] and her expectations he would resume a role in the family as soon as the case was closed. She advised Bianca to keep it a secret. This is indicative of the lack of insight she achieved, regarding the impact [the father's] abuse had on Bianca. The respondent completed a program through Interval House dealing with domestic violence. She participated in individual and family counseling through the Village. She completed a program through the Institute for Hispanic Families dealing with domestic violence. She completed the PIP/CREC program for parenting. She cooperated with the Queen Esther Ministry regarding mentoring. She failed to complete the YWCA non-offenders sexual abuse program. She was also referred to a similar program through St. Francis Hospital in January 2006 but failed to follow through because she chose to go to Florida for a vacation with a new boyfriend she had met over the Internet and also because she claimed she was ill.
The Department's first recommended permanency plan in 2004 was termination of parental rights, which was later, changed to reunification. The significant factor, in changing the permanency plan from termination back to reunification, was that mother was no longer residing with her infant's father . . . She had also been engaged in family therapy, admitting that she was in an abusive relationship and stated she had ended the relationship. Based on this apparent progress Lidyana was returned to mother's care at the end of July.
The reality was, however, was that mother and [the father] engaged in a scheme to deceive the Department as to their living arrangements. [The father] provided the Department with a letter indicating that he was residing in Manchester at a time the respondent was living in Windsor. DCF became suspicious based on a number of factors including statements by Bianca as to her mother living with [the father]. A DCF investigator and the Windsor Police Department conducted an unannounced visit to mother's apartment in the middle of the night on August 11, 2005 and found the father hiding under the bed. It was determined that the father was living in the next door apartment and had unlimited access to Lidyana and potentially, Bianca and Alexander, once they were returned to mother's care.
(Memorandum of Decision, 10-11.)
7. Judge Dannehy concluded:
It is obvious that mother minimizes and fails to accept responsibility or understand the reasons why her children were removed. She fails to either recognize or accept that most fundamental duty of a parent, namely, the protection of her children. Mother claims to have severed her ties with [the father] as of November 2005 which, coincidentally, was the time the TPR petition was filed. Until that time, mother maintained a relationship with [the father] and made statements to the effect that she saw no problem with him resuming a role in her children's lives.
Mother, despite breaking off her relationship with [the father] and her stated intentions to complete the non-offender's program has made no progress since the filing of the petition to terminate her parental rights. The evidence showed she met another man over the Internet and went to Florida to visit him in January of this year. She missed visits with her children and counseling sessions to visit a stranger. She made statements to Bianca about her new boyfriend and the room Bianca would have, once they moved in with this individual. These statements were made to a child who had been abused by the last man her mother had met over the Internet. [The mother] continues to place her own interests ahead of her children's well being.
In light of the children's ages and their need to be raised in a home where they will be protected and free from violence and mother's minimization and denial of their needs, mother cannot, within a reasonable period of time, assume a responsible position in their lives.
The court by clear and convincing evidence finds that the respondent mother has failed to achieve the necessary degree of rehabilitation and therefore finds for the petitioner on Count B1.
(Memorandum of Decision, 11-12.)
8. On five occasions prior to Judge Dannehy's decision as arranged by DCF the father met with William Hobson, who has a masters degree in social work, who is licensed by the state of Connecticut as a professional counselor, and who is a certified forensic counselor. (Exhibit 9.) Ms. Hobson's professional memberships include the Connecticut Association for Treatment of Sexual Offenders and the Association for Treatment of Sexual Abusers (International). (Exhibits 9, 10.) Mr. Hobson evaluated the father on August 20 and 27, 2004, and his report was dated January 17, 2005. (Exhibit 9.) The father had attended two sessions, missed the third scheduled session and he did not reschedule such session. Id., 1-2.
The father reported to the evaluator that his mother was physically and emotionally abusive to him during his childhood, and ? . . . he was severely beaten by her to the point of sustaining serious physical injuries." Id., 2. The father also reported . . . being hit in the head and face on numerous occasions . . . he has bled from his nose at times he has become angry or upset [and] he broke his leg when his mother threw him out of a second floor window when he was ten . . ." Id., 3.
The father reported that in August 2004, he had been living with the mother for eighteen months and that they had known each other for approximately two years. Id. They met each other on a "chat line." Id. In August 2007, the mother's two children by previous relationships and their child had been removed by DCF " . . . due to the pending allegations against [the father]." Id.
The allegations against the father were summarized as follows:
The identified victim, his stepdaughter who was around five years old at the time of the alleged incidents) reported several different incidents of abuse. These included sexual touching of her genital area by [the father], as well as episodes that he tied her up, put a hamster down her underwear (and also put the hamster on her younger brother), was physically violent toward her, and placed her in a closet and one time pretended to put her in an oven.
The father also tied up the mother. Id., 6.
The father admitted the following to the evaluator:
He admits tying [the stepdaughter's] hands behind her back, but says that this was part of a game he was playing with her. Likewise, he corroborates her account of being placed in a closet, claiming again that this was in the context of playing a game. He hit her with his hand on her back, but did so playfully. He does not remember ever kicking her. He also verified that there was a pet hamster, although he did not admit putting it down her underwear.
[The father] reports employing the use of physical discipline at times. He explains that when, he first met [the mother], the children misbehaved terribly. Therefore, he intervened and became the disciplinarian. He admits hitting [the stepdaughter] on occasion. He used a belt at times, but minimizes this, saying he never hit her hard and didn't want to leave marks. He believes that this was effective, citing his perception that she has become more polite as a result of his discipline. He does not view her as being emotionally harmed by his disciplinary actions. He contrasts his use of the belt with what he views as the clear abuse perpetrated against him by his mother. In fact, he says that his experience being abused by his mother motivated him never to be abusive to his children . . .
Id., 4.
Such evaluator noted that it was "beyond the purview of clinical assessment to determine guilt or innocence." Id., 5. Having written that, such evaluator then reported that he was
. . . struck by the fact that [the father] corroborated a number of [the stepdaughter's] statements during our interview, the only difference being his contention that his behavior was either done in the context of discipline or play. Given her age, it seems unlikely that she would possess the guile and forethought to fabricate such specific allegations. On the other hand, he admitted his fear of being found culpab[le] for any criminal behavior . . . The net effect of the above is that his comments on the matter tend to lend credibility to her allegations . . .
Id., 5-6.
Mr. Hobson opined that if the father's placement of the hamster in his stepdaughter's underwear was not motivated by sexual gratification, it was sadistic or grossly inappropriate. Such evaluator concluded that the father's
. . . admitted behavior would point out a dreadful lack of empathy and/or disregard for the welfare of others, as well as an alarming lack of understanding about child development and how frightening such experiences can be for anyone, especially a child.
Mr. Hobson stated that in his practice he did not typically hear about a child being tied up or an adult placing a hamster in a child's clothing. He also stated that both a sexual and sadistic interest in or attraction to young children is unlikely to change but treatment is a way of trying to "reduce the threat."
In a subsequent report after Mr. Hobson met with the father on December 5, 12 and 19, 2005, Mr. Hobson reported that the father claimed that the incidents with the hamster were an effort to teach the mother's daughter "not to be afraid . . ." (Exhibit 10, 2.) The father conceded to Dr. Hobson that "his approach was, at the very least, ill-conceived and counterproductive."
In such subsequent evaluation, Dr. Hobson found the father to be "more positive and optimistic." Id. He had re-started visitation with such biological daughter (Daniel's older sibling). The father acknowledged, however, "the past allegations regarding the emotional, physical and sexual abuse of [the mother's daughter and son] . . . [and] a sense of wrongfulness regarding his actions." Id. He also acknowledged that he tried to set limits on the children "in ways that were inappropriate and possibly overly harsh at times . . ." Id.
Mr. Hobson reported that the father seemed to benefit from parenting classes. Id. Mr. Hobson testified that he still had unanswered questions and concerns about the father having unsupervised contact with his biological daughter Lidyana.
The father, according to his report to Mr. Hobson, spoke disparagingly about the mother and claimed that he did not intend to continue his relationship with her. Id., 2-3. Approximately ten months after these statements, however, Daniel was born.
9. A Maternal Infant Outreach Program ("MIOP") worker who provides educational services to high risk pregnant women testified that on April 16, 2007, the mother was referred for MIOP services. The mother was uncooperative with such worker's multiple attempts to contact her and to provide services. The mother reported that she was living with a friend but such worker was unable successfully to see the mother in such home. On October 19, 2007, such worker was able to meet with the mother who told her that the father had "touched" Bianca and that he was the father of her youngest daughter Bianca. As a mandatory reporter, she made a report to the hospital and to DCF because all of the baby's supplies were located at the father's home. It was at this such October 19, 2007, meeting with the mother that the worker first received information about the father.
Based on her contacts and attempted contacts with the mother, such MIOP worker concluded that the mother was hiding from her the circumstances of her actual residence. This was unusual in such worker's experience. The mother provided the name of the father as an emergency contact, and such worker concluded that the mother was residing with the father.
10. On October 24, 2007, Daniel was born at Hartford Hospital. (Exhibit 2, 2.) After Daniel's birth, such worker visited the mother in the hospital. The mother was in bed, and the father was holding Daniel. Based on her observations such MIOP worker concluded that the mother and the father were a couple.
While such worker was present, the father said to the mother:
You know how I am — I don't know if I did it. The mother told such worker that the father was nice, and that he had obtained everything for Daniel. The mother told such worker that the father would not accept help and participate in services.
11. On October 25, 2007, a representative of Hartford Hospital contacted DCF because of its concern over the mother's past relationship with DCF "and her current relationship with [the father] . . ." Id. On October 26, 2007, DCF invoked a ninety-six hour hold on Daniel because of concerns about Daniel's safety. (Motion for judicial notice, 2; testimony of DCF investigative supervisor.) Such supervisor testified that the mother had disclosed significant past domestic violence between her and the father. Such supervisor also testified that the father had shoved the back of the mother's head into a carpet, and that the mother had hit the father with a shovel, scratched him, hit him, and had thrown a frying pan at him. The older children had been present for some of the domestic violence. With respect to Bianca's statements about the father's sexual abuse of her, the gist of the supervisor's testimony was that the mother refused to believe Bianca and had not acted to protect her. Such supervisor stated that the question for DCF was were the past issues leading to the removal of the mother's three older children, one of whom was the daughter of the father, still present to pose a risk to Daniel. All of the items for Daniel were at the father's apartment, and because of DCF's concerns the mother agreed to stay at the home of a member of her church (although the DCF worker could not find her at such location). This was not permanent housing for the mother and Daniel. Some of DCF's additional concerns were summarized in response to a question by the mother's attorney:
1. past domestic violence;
2. past sexual abuse of Bianca;
3. DCF's concern that even if the parents were living apart, the father would have unsupervised access to Daniel (on the date of Daniel's birth, it was DCF's understanding that the parents were an intact couple);
4. the father's lack of treatment for such sexual abuse issues, because of and including the father's unwillingness to acknowledge that his actions constituted sexual abuse;
5. the mother's failure to comply with previous DCF safety plans, including the safety plan for Lidyana, the daughter of both parents, where the father, who was not to have contact with the children, was found by DCF and the police under the mother's bed, thus causing DCF to cease provision of services to each parent because it had determined that reunification was no longer appropriate;
6. the mother's unwillingness to accept the previous TPR decision, and that the father had sexually abused Bianca, and her belief that the father had changed, she wanted to be involved with him and that "everything was okay" when Daniel was born; and
7. the father's lack of credibility concerning his claims that he had engaged in psychosexual counseling and that he had completed previous services.
DCF concluded that past services had been unsuccessful, that Daniel would be at risk with the father and the mother, and that coterminous petitions should be filed.
The DCF worker admitted that the father had not been arrested or charged with any sexual abuse; that DCF had no knowledge of other allegations of sexual abuse by the father of other children; and the father never said that he denied the allegations of sexual abuse.
12. On October 30, 2007, DCF filed its neglect petition in the interest of Daniel and its TPR petition against the parents. (Motion for judicial notice, 2.) Also on October 30, 2007, DCF filed a motion for an ex-parte order of temporary custody ("OTC") of Daniel. Id. Judge Keller found that Daniel was in immediate physical danger from surroundings and that continuation in the home was contrary to the welfare of said child. Id. Judge Keller issued such ex parte order. Id. Judge Keller also found that reasonable efforts to prevent or eliminate the need for removal of Daniel from the home were not possible. Id.
13. On November 9, 2007, Judge Dannehy sustained the order of temporary custody. Id.
14. On October 30, 2007, the SCJM ordered specific steps for the mother and the father. Id. The father accepted and signed the specific steps on November 9, 2007. The mother accepted and signed the specific steps on November 18, 2007. Above each parent's signature, the following was printed in bold lettering:
As the above-named respondent, I hereby agree to cooperate with the above conditions approved and ordered by the court and recognize that non-compliance with these steps [may result] in modification of the existing order or disposition. I acknowledge that failure to achieve these specific steps will increase the chance that a petition may be filed to terminate my parental rights permanently so that my child may be placed in adoption. I understand that I should contact my lawyer and/or DCF worker if I need help in reaching any of these steps.
The specific steps contained the following requirements and/or goals for each parent ? . . . to safely retain or regain the custody of the above-captioned children . . .:
(1) Keep all appointments set by or with DCF.
Cooperate with DCF home visits, announced or unannounced, and visits by the children's court appointed attorney and/or guardian ad litem.
(2) Keep children's whereabouts and your own whereabouts known to DCF, your attorney and the attorney for the child(ren).
(3) Participate in [parenting and individual] counseling and make progress toward the identified treatment goals: . . .
[Father] To address childhood trauma, identify violent behavior and appropriate responses to stress/anger. Learn and demonstrate age appropriate responses to child's needs.
[Mother] To address childhood trauma, identify violent behavior and appropriate responses to stress/anger, identify signs of abuse and develop a safety plan. Learn and demonstrate age appropriate responses to child's needs.
(4) Submit to substance abuse assessment and follow recommendations regarding treatment, including in-patient treatment if necessary, aftercare and relapse prevention.
(5) Submit to random drug testing; time and method of the testing shall be at the discretion of DCF.
(6) Cooperate with recommended service providers for parenting/individual/family counseling, in-home support services and/or substance abuse assessment/treatment:
[Father] Wheeler Clinic, My People's Clinical Services, Institute of Living.
[Mother] Wheeler Clinic, Institute for Hispanic Families, St. Francis Hospital.
(7) Cooperate with court ordered evaluations or testing.
(8) Obtain and/or cooperate with a restraining/protective order and/or other appropriate safety plan as approved by DCF to avoid further domestic violence incidents.
(9) Sign releases within 30 days authorizing DCF to communicate with service providers to monitor attendance, cooperation and progress toward identified goals, and for use in future proceedings before this court.
(10) Secure and/or maintain adequate housing and legal income.
(11) Not engage in substance abuse.
(12) Have no involvement/further with the criminal justice system. Cooperate with the Office of Adult Probation or parole officer and comply with conditions of probation or parole.
(13) Immediately advise DCF of any changes in the composition of the household to ensure that the change does not compromise the health and safety of the child(ren).
(14) Visit the children as often as DCF permits.
(13) Within thirty (30)days of the issuance of these steps, and in a timely manner thereafter, notify DCF in writing of the name, address, family relationship and birth date of any person(s) whom the respondent would like [DCF] to investigate and consider as a placement resource for the child(ren).
(14) Notify DCF of the names and addresses of the grandparents of each child.
(Numbering added; bold type in original.)
15. The required social study in support of the coterminous petitions was filed on November 28, 2007. (Exhibit 1.)
16. The father provided the following information to DCF:
[The father] was born on 3/31/85 in Mexico. He is the middle child of three. He has an older sister and a younger brother. [The father] reports that his siblings and his parents currently reside in Mexico. [The father] reports that he moved to the United States the first time when he was 6 years of age. [The father] reported the family returned to Mexico when he was about 12 years of age and returned again to the United States when he was 15 years of age with his father. [The father] reported being physically and emotionally abused by his mother. He stated that he also suffered a head wound from physical abuse. [The father] also reported he had a tough childhood as he only completed middle school education and had to work to support the family.
[The father] is currently employed at The W_______ S___ in Windsor. He also keeps busy doing odd jobs. [The father] reportedly has no physical or psychiatric problems at this time. [The father] denied having any current or substance abuse history.
(Exhibit 1, 4.) The father stated to DCF that he lived alone (separate from the mother). Id., 5.
17. When DCF filed the coterminous petitions, Daniel was six days old. Id., 4.
18. As of November 26, 2007, the mother and the father had supervised visits with Daniel each week for two hours at the DCF regional office. Id. The mother and the father attended the visits together. Id.
19. Both the mother and the father had reported to DCF that there were no relative resources available for Daniel. Id. DCF sent a letter to the maternal grandmother who expressed an interest in caring for Daniel, and DCF was assessing her suitability as a resource. Id. (She eventually was found not to be an appropriate caretaker.)
20. Around the date of the filing of the coterminous petitions the mother stated to DCF that she was living with a friend, and that she had returned to work part time at a fast food restaurant. Id.
21. DCF's basis for the filing of the coterminous petitions was that:
Father has not acknowledged his issues with sexually assaulting mother's older child. Mother has been unable or unwilling to place the needs of her children before her own needs in that she continues to maintain a relationship with father. Both parents have a history of trauma as children that have not been addressed.
Id., 5.
DCF's reasons for termination being in the best interest of Daniel were that: There is a history of domestic violence between mother and father. Father has done some work in this area, as he is able to identify some of his triggers and appears to have a plan to walk away when his temper is triggered. Mother appears to be more submissive in the relationship. However, father continues to minimize his role as an abuser. The issue of father being a perpetrator of sexual abuse has not been addressed. Mother continues to put her needs before the needs of her child in that she continues to maintain a relationship with father.
Id.
22. The current worker, who was assigned to the case in December 2007, is assigned to the DCF permanency unit. She testified that the presenting issues in the case were past domestic violence; the allegations of the father's sexual abuse of Bianca; the previous termination of the mother's parental rights to her other children and the termination of the father's parental rights to his daughter; and the referral from the hospital that DCF received because of the previous history and the parents' continuing relationship being seen as a threat to the safety of Daniel.
23. The mother denied to such worker that she and the father were in a relationship. The father felt that he was not in a relationship with the mother because of DCF, and if DCF were not involved with them they would be in a relationship.
24. Such worker testified that she attempted with several providers to refer the father for a psycho sexual evaluation, but such providers preferred to work with children and teenagers. By the commencement of the trial such worker had located a provider in Massachusetts to provide services to the father but the father had not yet been scheduled to begin treatment.
25. Such worker testified that she was also attempting to refer the mother to a sexual abuse program for non-offenders, and that she had identified two such programs that would be starting new groups in the future.
26. After it filed its October 30, 2007, coterminous petition, DCF offered services to the mother:
CT Page 9953
On 12/5/07, [the mother] had a substance abuse and mental health assessment at Wheeler Clinic. [The mother] has a history of sexual abuse by her biological father as well as abandonment by her biological mother, which according to mother resulted in mother [being] adopted. Mother has also had at least two relationships that involved domestic violence towards her. The clinician, Ms. Amy Taber [who testified], did not recommend substance abuse treatment; however, she did recommend that mother participate in mental health services due to her significant history of trauma." At that time, Ms. Taber stated that she did not know if' "mother was ready for treatment." Ms. Taber further stated, "I don't feel she's ready to address her trauma history because she minimizes it and she does not want to go there.
(Exhibit 2, 2.)
27. On December 5, 2007, the mother completed the Wheeler Clinic intake process. (Exhibit 5.) She reported that she had pain and that it sometimes interfered with her ability to participate in daily activities. Id., 3. The mother reported that she was not currently pregnant. Id., 4. The mother had part-time employment of less than 35 hours per week. Id., 9. The mother denied any current substance abuse, drug or alcohol issues. Id., 10-11. The mother report[ed] a long history of trauma, and domestic violence which is the reason for the involvement with DCF . . . Id., 14.
28. Ms. Taber, the Wheeler Clinic employee who conducted the intake interview also wrote:
. . . Client does not seem to process the extent of her responsibility in the DV cases. Collateral (DCF) is mandating client into Women's DOVE group, beginning 1/30/08 . . .
Id.
29. On January 30, 2008, the mother began a twenty-six week program at Wheeler Clinic that addresses issues of domestic violence (the DOVE program). Id., 3, 18. On January 30, 2008, the mother reported to her group at Wheeler Clinic that her relationship with the father had ended. CT Page 9954 Id., 18. Despite such statement the mother continued to have contact with the father:
. . . [The mother] report[ed] that the father of her child was manipulative to her this weekend . . .
Id. 21. The mother generally was a very active participant in the group sessions. See., e.g., id., 23-35.
30. As of April 28, 2008, the mother's therapist reported to DCF that the mother was "making good progress, [but] she [was] not where she needs to be." Id. During the trial, the mother was continuing in such program. See also exhibit 5.
31. Since DCF became re-involved with the family in October 2007, the mother resided in at least four apartments and she did not have stable housing. Id. During the trial the mother was residing with her mother (the maternal grandmother) who was ill and needed her help because of such illness. DCF had determined that such residence was not appropriate for Daniel. Id., 4.
32. The mother has had weekly supervised visitation with Daniel. Id., 5. The mother has been consistent in her visitation, but "towards the end of the visits, she typically falls asleep with Daniel . . ." in her arms, raising safety issues. Id.
33. After it filed its coterminous petitions, DCF also offered services to the father:
On 12/17/07, Ms. Stacy Cole [who testified] from the DOVE (Domestic Violence Offender Intervention) program at Wheeler Clinic informed the Department that [the father's] case was previously opened with their agency in 2005. He attended one session in May 2006; however he then had three no shows and was subsequently unsuccessfully discharged.
On 12/17/07, [the father] was again referred to this program for domestic violence treatment, substance abuse assessment and mental health services.
On 1/14/08, the Department contacted Wheeler Clinic to find out the status of [the father's] compliance with services. Ms. Taber informed the Department that [the father] was supposed to attend a substance abuse evaluation on 12/24/07. However, he was forty minutes late therefore; she could not do the evaluation as her schedule did not allow it due to his tardiness.
She rescheduled him for 1/2/08 at 11 am. [The father] called her at 10 am on 1/2/08 stating that he was on his way. However, he did not show up until approximately 1 pm (2 hours late). Ms. Taber could not do the evaluation given that the father] was late. However, her co-worker, Li[s]e O'Neill who testified], was able to complete the substance abuse evaluation. Ms. Taber stated that [the father] was "exhibiting the same behavior patterns that he has before." "He is not taking this serious[ly].
On 1/28/08, [the father] participated in the Domestic Violence Assessment at Wheeler Clinic. It was recommended that [the father] participate in the twenty-six week program for domestic violence offenders. He began this program on 2/4/08.
Id., 2-3; see also exhibit 8.
34. In such January 2, 2008, intake session, the father reported that he and the mother had been separated for approximately eighteen months and then reunited for approximately eighteen months. (Exhibit 8, 7.) The father stated to the intake worker that he and the mother were " . . . currently separated but are actively working toward reunification for the sake of their children." Id. He also reported that the mother did not live with him. Id., 8.
35. In an April 28, 2008, report the father's therapist reported to DCF that she "[had] the sense that [the father was] keeping things to himself . . ." and that he was "very guarded." Id., 3. Such therapist was exploring a male therapist for the father to allow him "to address his own past trauma." (Exhibit 2, 2-3.) The DOVE group clinician Ms. Taber reported to DCF "that [the father] had been coming to group and that he participates in group but yet hold[s] himself back and [she] cannot really say a lot about him." (Exhibit 8, 32.)
36. In April 2008, the father reported to DCF that because he could no longer afford the rent he had moved from his apartment. (Exhibit 2, 4.) For a period of time, the father moved to the basement of a restaurant and then to an upper floor apartment. Id., 4-5. Because of the father's lack of cooperation, the DCF worker was unable to confirm that the father had such third floor apartment. Id., 5. He was working for the restaurant owner, who was "get[ting] started," but he has not received regular income. Id. He was given money and the occasional use of a motor vehicle by the owner of the restaurant.
37. Prior to his work in connection with the restaurant, since January 2008, the father did not have stable income. Id. He reported to the social worker that he was doing "odd jobs" including some computer work. Id.
38. From November 16, 2007, through May 13, 2008, the father missed eleven of twenty scheduled visits and he was late for eight of the nine visits he did attend. Id. He last visited with Daniel on March 6, 2008. Id. When asked by the social worker to explain why he had not visited with Daniel since March 6, 2008, he responded:
That's my fault, I didn't feel like it.
Sometimes I don't even know.
Things like this, I don't really care.
Id., 6.
39. As of May 13, 2008, each parent denied any relationship with the other parent. Id. However, DCF noted the continuing communication and connection between them. Id. The DCF worker also reported the following:
[The mother] is currently pregnant with her 5th child. [The mother] reports that there is a chance that this child might be [the father's]. However, there is also a chance that it might be from another man. This social worker requested that [the mother] provide this social worker with more information regarding this individual and she stated that she met him at a bar a couple of times and only knew him by his first name, "Alex." This social worker recently learned that [the mother] is in yet another relationship (not with Alex). Of concern is [the mother's] judgment as it relates to her involvement with men. [The mother] admits that she had a sexual relationship with [the father] on 11/22/07. She also admitted to this social worker that she had a sexual relationship with "Alex" in December 2007. She is now involved with another gentleman unknown to the Department.
The parents have been provided with an abundance of services through various agencies throughout their involvement with the Department; Interval House — domestic violence, Institute for the Hispanic Family-individual therapy/domestic violence, PIP/CREC parenting skills classes, YWCA — non-offenders treatment program, Village for Families and Children — family therapy, Abundant Life — Intensive Family Reunification, Queen Esther Ministry — mentoring services, Dr. Humphrey — anger management, Bill Hobson-Psychosexual Evaluation and sexual abuse for offenders group, Village for Families and Children — assessment; Wheeler Clinic Domestic Violence Groups, Wheeler Clinic Individual Therapy, Transportation, Visitation, Housing Assistance and Substance Abuse Assessment.
Id.
40. Since the filing of the coterminous petitions, such current DCF permanency worker testified that the mother did not have stable housing, and that she was currently residing with her mother, the maternal grandmother, who was ill and needed the mother's care. The father had given up his apartment that he had at the time of Daniel's birth, and he had resided in at least two subsequent locations, one in a basement of a restaurant and the other on the third floor of such building that he would not show to such worker after promising to do so.
41. Such DCF permanency worker testified that DCF had determined that the maternal grandmother's apartment was not appropriate for Daniel and that she was not appropriate as a caretaker. Five of such maternal grandmother's children had been removed from her and two other children had died while in her care. In fact, the mother had been adopted by another family because the maternal grandmother had been unable to care for her. Additionally, the step-grandfather is a convicted felon.
42. Since January 2008, each parent has been scheduled separately to visit Daniel. The father has not visited Daniel since March 6, 2008. When the father did visit with Daniel, he became agitated when Daniel became fussy. DCF's primary concern with the mother's visits have been that she falls asleep while holding Daniel in her arms while sitting in a chair.
43 .While each parent wants to be reunified with Daniel, the father supports the mother's reunification with him. The father believes that he would have more contact with Daniel if he were reunified with the mother. DCF believes that the father should not have unsupervised contact with Daniel and that the mother is not able to be an effective supervisor.
44. Such worker testified that DCF has been concerned about the mother's judgment. According to her, the mother's current pregnancy is as a result of sexual relations with the father or someone only known to her as Alex, whom she met in a bar, and she claims to have a new current relationship. Although the mother told Ms. Taber about such new boyfriend, the mother denied that she was involved with such man other than as a friend.
45. According to Ms. Taber of Wheeler Clinic, the mother is demonstrating progress in working on her issues. She is committed to doing things differently, weighing her options and feeling generally better about herself. The mother is "absolutely in compliance" with the Wheeler Clinic services, including individual therapy that she commenced in April 2008.
46. With respect to the father, Ms. Taber stated that in the four or five weeks before the trial, the father's participation in the Wheeler Clinic DOVE group had increased, and he seemed to feel more comfortable in the group. Although his progress has not been as fast as others in the group, he is benefitting from the program.
47. Additional facts are set forth infra. Unless otherwise specified, all facts set forth in this decision are found by clear and convincing evidence.
LAW APPLICABLE TO NEGLECT CASES: 1. Definition of neglect:
The grounds for an adjudication of neglect alleged by DCF in this case are based on General Statutes § 46b-120:
. . . (9) a child or youth may be found "neglected" who . . . (B) is being denied proper care and attention, physically, educationally, emotionally or morally, or (C) is being permitted to live under conditions, circumstances or associations injurious to the well-being of the child or youth . . .
?`Neglect . . . is the failure to exercise the care that the circumstances justly demand. It embraces willful as well as unintentional disregard of duty. It is not a term of fixed and measured meaning. It takes its context always from specific circumstances and its meaning varies as the context of surrounding circumstances changes.' (Internal quotation marks omitted.) The Honorable Thomas D. Gill, `The Legal Nature of Neglect' . . ." Randall v. Dunbar, No. CV 04 0525159 S, Superior Court, Judicial District of New Britain at New Britain (Murray, J., December 29, 2004) [38 Conn. L. Rptr. 468].
Neglect also has been generally defined as "the failure, whether intentional or not, of the person responsible for the child's care to provide and maintain adequate food, clothing, medical care, supervision and/or education." State of Connecticut DCF website, operational definitions. The following are set forth as "examples of physical neglect: 1. the failure to provide adequate food, shelter, and clothing appropriate to the climactic and environmental conditions[;] 2. the failure to provide, whether intentional or not, supervision or a reliable person(s) to provide child care[;] 3. leaving a child alone for an excessive period of time given the child's age and cognitive abilities[;] 4. holding the child responsible for the care of siblings or others where beyond the child's ability[;] 5. the person responsible for the child's care displays erratic or impaired behavior[;] 6. the person responsible for the child's care is unable to consistently perform the minimum of child-caring tasks[; and] 7. death." There are additional examples set forth in the DCF operational definitions of educational, emotional and moral neglect. See also In re Cameron W., F04-CP04-006236-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Wilson, J., December 28, 2006).
2. The nature of a neglect proceeding.
A neglect petition has been described as sui generis, and as "not a typical civil action." In re Allison G., 276 Conn. 146, 158, 883 A.2d 1226 (2005). The purpose of neglect and uncared for proceedings are to insure the child's safety and to secure a permanent placement for such child "as expeditiously as possible," whether such placement is with one or both parents, biological relatives, foster care or an institutional setting. Id. In In re Allison G., the primary issue was whether the trial court judge properly dismissed the neglect allegations of the DCF petition over the objection of DCF after the parents agreed to plead no contest to the uncared for allegations of such petition, and after the parents agreed to the relief sought by DCF, e.g., commitment of the child to the care, custody and guardianship of DCF. The Court set forth some "general observations":
In considering this issue, we begin with some general observations about the context in which this claim arises. A neglect petition and concomitant request for an order of commitment are not a typical civil action. "A neglect petition is sui generis and, unlike a complaint and answer in the usual civil case, does not lead to a judgment for or against the parties named." In re David L., 54 Conn.App. 185, 191, 733 A.2d 897 (1999). In such proceedings, the petitioner acts not to vindicate her personal rights but, acting for the state as parens patriae, to ensure, first and foremost, the child's safety and, second, a permanent placement of the child as expeditiously as possible. In re Joshua S., 260 Conn. 182, 196-97 n. 15, 796 A.2d 1141 (2002); In re Jason C., 255 Conn. 565, 576-77, 767 A.2d 710 (2001); In re Jonathan M., 255 Conn. 208, 231-32, 764 A.2d 739 (2001). The petitioner [DCF] does not seek the monetary or equitable relief of a typical civil action, but, rather, actions by the court that will further the dual goals of safety and permanency. Accordingly, "relief" in this context takes on a somewhat different meaning, and the petitioner's interests in seeking an adjudication and disposition upon filing a neglect petition do not fit neatly within the aggrievement rubric. See In re David L., supra, 191-93 (distinguishing between significance of adjudication and disposition of neglect petition).
In re Allison G., supra, 276 Conn. at 158-59.
In In re Allison G., the Supreme Court recognized that "[t]he focal point of a neglect petition is not condemnation of the parents, but, rather, the status of the child." In re Allison G., supra, 276 Conn. at 164. Such court also noted that the status of the child "is determined as a result of the adjudication, not the disposition of the petition." Id. Such court also stated:
An adjudication of neglect that results in an order of commitment necessarily implies that the neglect occurred due to some action or inaction on the part of the custodial parents. A finding to that effect does not serve merely a punitive purpose, as suggested by the trial court. Rather, the parents' willingness thereafter to accept responsibility reasonably may bear on whether reunification or termination of parental rights is in the child's best interest . . .
In re Allison G., supra, 276 Conn. at 164.
In In re Allison G., supra, 276 Conn. at 153 n. 4, the court " . . . underscore[d] the importance of an adjudication of both counts of the petition . . ." e.g., both the neglect and uncared for counts.
3. Neglect standards
Pursuant to General Statutes § 46b-129, neglect trials are comprised of two parts, adjudication and disposition. In re Brianna C., 98 Conn.App. 797, 801 (2006). Conn. Practice Book § 35a-7 also provides:
(a) In the adjudicatory phase, the judicial authority is limited to evidence of events preceding the filing of the petition or the latest amendment.
(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 Brianna C., supra, 98 Conn.App. at 805, the Appellate Court explained this court's disposition options as follows:
After an adjudication of neglect, a court may
(1) commit the child to the commissioner,
(2) vest guardianship in a third party or
(3) permit the parent to retain custody with or without protective supervision. General Statutes § 46b-129(j) . . .
In determining the disposition portion of the neglect proceeding, the court must decide which of the various custody alternatives are in the best interest of the child. "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 [the child's] environment." (Internal quotation marks omitted.) In re Haley B., 81 Conn.App. 62, 67, 838 A.2d 1006 (2004). At trial, the commissioner had the burden of proving by a fair preponderance of the evidence that it was in the child's best interest to be committed to the commissioner rather than to remain with the respondent. See id., 65.
General Statutes § 46b-129(j) sets forth the court's authority to commit a child:
. . . (j) Upon finding and adjudging that any child or youth is uncared-for, neglected or dependent, the court may commit such child or youth to the Commissioner of Children and Families. Such commitment shall remain in effect until further order of the court, except that such commitment may be revoked or parental rights terminated at any time by the court, or the court may vest such child's or youth's care and personal custody in any private or public agency that is permitted by law to care for neglected, uncared-for or dependent children or youths or with any person or persons found to be suitable and worthy of such responsibility by the court. 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. The commissioner shall be the guardian of such child or youth for the duration of the commitment, provided the child or youth has not reached the age of eighteen years or, in the case of a child or youth in full-time attendance in a secondary school, a technical school, a college or a state-accredited job training program, provided such child or youth has not reached the age of twenty-one years, by consent of such youth, or until another guardian has been legally appointed, and in like manner, upon such vesting of the care of such child or youth, such other public or private agency or individual shall be the guardian of such child or youth until such child or youth has reached the age of eighteen years or, in the case of a child or youth in full-time attendance in a secondary school, a technical school, a college or a state-accredited job training program, until such child or youth has reached the age of twenty-one years or until another guardian has been legally appointed. The commissioner may place any child or youth so committed to the commissioner in a suitable foster home or in the home of a person related by blood to such child or youth or in a licensed child-caring institution or in the care and custody of any accredited, licensed or approved child-caring agency, within or without the state, provided a child shall not be placed outside the state except for good cause and unless the parents or guardian of such child are notified in advance of such placement and given an opportunity to be heard, or in a receiving home maintained and operated by the Commissioner of Children and Families . . .
If commitment is ordered, the court also orders specific steps for reunification:
We first note that the commitment in this case is not one of "permanency," such as a judgment of termination of parental rights, but one that requires, pursuant to § 46b-129(j), the court to "order specific steps which the parent must take to facilitate the return of the child or youth to the custody of such parent."
See also General Statutes §§ 17a-110a, 17a-111b and 17a-112(o).
In re Brianna C., supra, 98 Conn.App. at 805.
In such footnote 8 in Brianna C., the court noted that the trial court in that case ordered many specific steps for reunification:
. . . the specific steps were many, including unannounced visits to the respondent and the child by department workers, attendance at parenting classes, individual and domestic counseling, and protective orders against the child's father to safeguard the child.
Id.
If the court orders that a child be committed to the care, custody and guardianship of DCF, the court must also find that DCF made reasonable efforts to keep the children in the home, or that such efforts were not possible:
The respondent also claims that the court abused its discretion when it found that the department had made reasonable efforts to keep the child with the respondent before seeking custody of the child. The last sentence of § 46b-129(j) provides in relevant part: "Upon the issuance of an order committing the child or youth to the [commissioner], or not later than sixty days after the issuance of such order, the court shall make a determination whether the [department] made reasonable efforts to keep the child or youth with his or her parents or guardian prior to the issuance of such order . . .
In re Brianna C., supra, 98 Conn.App. at 806-07.
The full relevant language in § 46b-129(j) is as follows:
Upon the issuance of an order committing the child or youth to the Commissioner of Children and Families, or not later than sixty days after the issuance of such order, the court shall make a determination whether the Department of Children and Families made reasonable efforts to keep the child or youth with his or her parents or guardian prior to the issuance of such order and, if such efforts were not made, whether such reasonable efforts were not possible, taking into consideration the child's or youth's best interests, including the child's or youth's health and safety.
In connection with determining the disposition of a neglect case, the court looks at the full picture of the family circumstances, including the full history of each parent's parenting abilities, to determine whether either parent can and will " . . . foster the [child's] growth, development and well-being . . ." Gil v. Gil, 94 Conn.App. 306, 322, 892 A.2d 318 (2006). In the Gil case, a dissolution of marriage case, this requirement has been expressed as follows:
. . . Nevertheless our Supreme Court has also held that "the court must . . . take account of the parents' past behavior, since it must evaluate their present and future parenting ability and the consistency of their parenting for the purpose of determining which parent will better foster the [child's] growth, development and well-being." Yontef v. Yontef, 185 Conn. 275, 283, 440 A.2d 899 (1981).
In In re Jennifer W., 75 Conn.App. 485, 499, 816 A.2d 697 (2003), cert. denied 263 Conn. 917, 821 A.2d 770 (2003), a termination of parental rights case, the duty of the trial court was set forth as follows:
. . . 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).
As in any case involving the determination of custody, the touchstone for such dispositional decision is the court is the best interest of the child:
Generally, questions of custodial placement are resolved by a determination of "what is in the best interest of the child . . . as shown by a fair preponderance of the evidence." (Citations omitted.) In re Shyina B., 58 Conn.App. 159, 163, 752 A.2d 1139 (2000). "The trial court is vested with broad discretion in determining what is in the child's best interests." (Internal quotation marks omitted.) In re Joshua S., 260 Conn. 182, 209, 796 A.2d 1141 (2002) . . .
In re Haley B., 81 Conn.App. 62, 65 (2004).
But see Fish v. Fish, 285 Conn. 24, 81, 89-90 (2008) with respect to custody awards to a third party, whether or not a relative:
. . . In the present case, we believe that it has because, to the extent that this court has placed a judicial gloss on the standard of harm set forth in § 46b-56b, courts will have clear notice that third party custody awards may not be based on a few instances of misconduct, that such awards are justified only in exceptional circumstances and that the petitioner must allege and prove, at the very least, that continued parental custody will be clearly damaging, injurious or harmful to the child. This is a heavy burden under either standard of proof. See McGaffin v. Roberts, supra, 193 Conn. 412 (Parskey, J., dissenting) (burden on nonparent to disprove presumption in favor of parental custody is "a heavy one").
***
To summarize, in cases in which a third party seeks to intervene in a custody proceeding brought pursuant to § 46b-56(a), the party must prove by a fair preponderance of the evidence facts demonstrating that he or she has a relationship with the child akin to that of a parent, that parental custody clearly would be detrimental to the child and, upon a finding of detriment, that third party custody would be in the child's best interest. In cases in which the trial court considers awarding custody to a third party who has not intervened pursuant to § 46b-57, the court may award custody to the third party provided that the record contains proof of the foregoing facts by a fair preponderance of the evidence.
***
In the present case, the trial court failed to apply the correct standard when it granted [paternal aunt's] motion to intervene and awarded her custody solely on the basis of the best interest of the child.
As set forth above, and pursuant to Practice Book § 32a-3(a), the standard of proof applied in a neglect, uncared for or dependency proceeding is a fair preponderance of the evidence. In In re Brianna C., supra, 98 Conn.App. at 801, the Appellate Court confirmed that "[t]he burden of proof is on the petitioner to show by a fair preponderance of the evidence that removal of a child from his or her home is warranted. In re Juvenile Appeal (83-CD), 189 Conn. 276, 293-95, 455 A.2d 1313 (1983)." Later in such decision, the Appellate Court reiterated:
The standard of proof applicable to nonpermanent custody proceedings, such as neglect proceedings, is a fair preponderance of the evidence. In re Juvenile Appeal (84-AB), 192 Conn. 254, 263, 471 A.2d 1380 (1984); Practice Book § 32a-3(a).
In re Brianna C., supra, 98 Conn.App. at 802.
Specifically with respect to dispositional matters, the same burden of proof applies:
At trial, the commissioner had the burden of proving by a fair preponderance of the evidence that it was in the child's best interest to be committed to the commissioner rather than to remain with the respondent. See id., 65. On appeal, we must determine whether there was sufficient evidence before the court so that it reasonably could find, by a fair preponderance of the evidence, that the best interest of the child was to commit custody of her to the commissioner, with eight hours daily of unsupervised visits with the respondent.
In re Brianna C., supra, 98 Conn.App. at 804-05.
4. The meaning of "fair preponderance of the evidence.
As set forth above, the standard of proof in a neglect case is the "fair preponderance of the evidence."
Such standard has been defined as follows:
"Fair preponderance of the evidence" was properly defined as "the better evidence, the evidence having the greater weight, the more convincing force in your mind." The court charged that the standard had been satisfied with respect to a fact if all the evidence considered fairly and impartially evince[d] a reasonable belief that it [wa]s more probable than not that the fact [wa]s true.
Cross v. Huttenlocher, 185 Conn. 390, 394-95, 440 A.2d 952 (1981); see also Konover Development Corp. v. Zeller, 228 Conn. 206, 230, 635 A.2d 798 (1994).
The Connecticut Supreme Court has previously determined that in temporary custody and neglect proceedings application of the fair preponderance standard satisfies constitutional requirements:
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).
Fish v. Fish, supra, 285 Conn. at 73-74.
5. Best interests of the child in a neglect case.
As set forth above, with respect to disposition after an adjudication that a child is neglected or uncared for, " . . . the court must decide which of the various custody alternatives are in the best interest of the child . . ." In re Brianna C., supra, 98 Conn.App. at 805. In doing so, " . . . 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.'" In re Haley B., supra, 81 Conn.App. at 67.
In deciding what is in the best interest of the child, the trial court "is vested with broad discretion." In re Alexander C., 60 Conn.App. 555, 559, 760 A.2d 532 (2000). The Appellate Court explained the basis for such broad discretion in the trial court as follows:
" . . . The trial court had the advantage of observing the parties and witnesses. [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." (Internal quotation marks omitted). Kearney v. State, 174 Conn. 244, 252, 386 A.2d 223 (1978). "In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did." (Internal quotation marks omitted.) Simmons v. Simmons, 244 Conn. 158, 175, 708 A.2d 949 (1998); Ignacio v. Montana-Ignacio, 57 Conn.App. 647, 648, 750 A.2d 491 (2000).
Id., 559-60; see also In re Patricia C., 93 Conn.App. 25, 33, 887 A.2d 929 (2005) (such a deferential standard of review is appropriate).
A child's best interests include the child's interest in health and safety, in sustained growth, development, well-being, and in the continuity and stability of its environment. General Statutes § 46b-129(j); see page 33-34, supra. These factors are also considered and applied in termination of parental rights dispositions, In re Joseph L., 105 Conn.App. 515, 529 (2008), and in revocation of commitment cases, In re Cameron C., 103 Conn.App. 746, 759, 930 A.2d 826 (2007).
6. Given the history of the respondents' parenting, and their circumstances at the time of Daniel's birth, DCF could reasonably have concluded and has proved by a fair preponderance of the evidence that Daniel was neglected on October 30, 2007, when the neglect petition was filed with the court.
Given the history of the respondents' parenting, and their circumstances at the time of Daniel's birth, DCF could reasonably have concluded and has proved by a preponderance of the evidence that on October 30, 2007, the date of the neglect petition, Daniel was neglected on the basis of each ground alleged in the neglect petition, e.g., denied proper care and conditions injurious to the well being of Daniel. In Re T.K., 105 Conn.App. 502, 939 A.2d 9 (2008); In re Michael D., 58 Conn.App. 119, 123-25, 752 A.2d 1135, cert. denied, 254 Conn. 911, 759 A.2d 505 (2000).
Given the current circumstances of the parents, the disposition that will foster Daniel's health and safety, his interest in sustained growth, development, well-being, and in the continuity and stability of his environment, and his general best interest, is commitment to the care, custody and guardianship of DCF. Daniel thus is committed to the care, custody and guardianship of DCF. It is not in his best interest presently to be returned to the care, custody or guardianship of either parent.
Final specific steps are ordered initially to be proposed by DCF to the mother and the father by delivery to their attorneys on or before June 30, 2008. If the parties cannot agree on such specific steps, the attorneys shall notify the Child Protection Session clerk's office, and a hearing shall be scheduled and held at the Child Protection Session to determine such specific steps.
DCF HAS NOT PROVED BY CLEAR AND CONVINCING EVIDENCE THAT EITHER PARENT'S RIGHTS SHOULD BE TERMINATED AT THIS TIME
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 the prerequisites to a determination that any contested TPR petition should be granted are that the court must find by clear and convincing evidence
. . . 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 . . .
and that
termination is in the best interest of the 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 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 grounds alleged in this case are:
. . . (E) the parent of a child under the age of seven years who is neglected or uncared for, has failed, is unable or is unwilling to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child and such parent's parental rights of another child were previously terminated pursuant to a petition filed by the Commissioner of Children and Families . . .
(General Statutes § 17a-112(j)(3).)
The personal rehabilitation language in Ground E is similar to such language in Ground B:
. . . (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 . . .
2. Coterminous petitions
There is statutory and Practice Book authority for the filing of coterminous petitions.
General Statutes § 17a-112 provides as follows:
(1) Any petition brought by the Commissioner of Children and Families to the Superior Court, pursuant to subsection (a) of section 46b-129, may be accompanied by or, upon motion by the petitioner, consolidated with a petition for termination of parental rights filed in accordance with this section with respect to such child. Notice of the hearing on such petitions shall be given in accordance with sections 45a-716 and 45a-717. The Superior Court, after hearing, in accordance with the provisions of subsection (i) or (j) of this section, may, in lieu of granting the petition filed pursuant to section 46b-129, grant the petition for termination of parental rights as provided in section 45a-717.
Practice Book § 35a-3 provides as follows:
When coterminous petitions are filed, the judicial authority first determines by a fair preponderance of the evidence whether the child is neglected, uncared for or dependent; if so, then the judicial authority determines whether statutory grounds exist to terminate parental rights by clear and convincing evidence; if so, then the judicial authority determines whether termination is in the best interest of the child by clear and convincing evidence. If the judicial authority determines that termination grounds do not exist or termination is not in the best interest of the child, then the judicial authority may consider by a fair preponderance of the evidence any of the dispositional alternatives available under the neglect, uncared for or dependent petition.
In its policy manual, DCF sets forth the following, inter alia, concerning coterminous petitions:
Coterminous petitions are filed when the Department is seeking termination of parental rights and the court has not yet adjudicated the child as neglected or uncared for. The purpose is to move the child more quickly to a permanent home when it has been determined that the parent is not likely to rehabilitate or the child has been abandoned, and/or reasonable efforts to reunify are not required.
In cases where no petition is pending, a neglect petition and petition for termination of parental rights and supporting legal documents (including a Motion for an Order of Temporary Custody) are submitted together when filing coterminously.
In cases in which a neglect petition is already pending, but has not been adjudicated, the petition for TPR is submitted along with a Motion to Consolidate the neglect proceeding with the TPR proceeding. Once this motion is granted, the case becomes coterminous.
In coterminous cases, the court usually hears and decides the neglect and TPR petitions at the same time.
DCF policy manual § 46-3-9 (emphasis supplied).
In such policy manual, DCF recognizes that the court must approve DCF's cessation of reasonable efforts to reunify a parent and child:
A motion can be filed at any time during the neglect or TPR proceedings to request that the court find that reasonable efforts to reunify are no longer appropriate. In that case, the court may find that reunification efforts are no longer appropriate if one or more of the following aggravated circumstances exists:
the child has been abandoned
the parent has inflicted sexual molestation or exploitation on the child
the parent has inflicted severe physical abuse on the child
the parent has engaged in a pattern of abuse against the child
the parent has killed a sibling of the child or another child of the parent by nonaccidental, deliberate means
the parent has requested, commanded, importuned, attempted, conspired or solicited the killing of the child or a sibling or another child of the parent
the parent has assaulted the child or a sibling of the child or another child of the parent by non-accidental deliberate act that results in serious body injury
the parental rights to a sibling were involuntarily terminated within three years of the filing of the current petition (reasonable efforts to reunify shall be made for at least 90 days prior to the filing of the present petition)
the parent was convicted of sexual assault resulting in the conception of the child, or
the child was placed in the custody of the Department pursuant to the conditions of the Safe Haven Act (Conn. Gen. Stat. § 17a-57— 17a-61).
It is best-case practice to file this motion as soon as TPR has been decided as the permanency plan, unless the court has already made the finding.
If the parent(s) objects to the Department's motion for no further reunification efforts, the court must hold an evidentiary hearing within sixty (60) days of the filing of the objection. The standard for this finding is clear and convincing evidence even if the termination petition has not yet been filed. The burden of proof is on the Department.
DCF policy manual § 46-3-21.1 (emphasis supplied).
General Statutes § 17a-111b(a) directs DCF to make reasonable efforts to reunify a parent with a child unless:
the court (1) determines that such efforts are not required pursuant to subsection (b) of this section or subsection (3) of section 17a-112, or (2) has approved a permanency plan other than reunification pursuant to subsection (k) of section 46b-129.
In this case, DCF did not seek a court order pursuant to General Statutes § 17a-111b(b), upon which the foregoing policy is based, to be relieved of its statutory duty to reunify Daniel with one or both of his parents. No permanency plan other than reunification, e.g., for TPR and adoption, has been approved by this court. This court also has not determined pursuant to General Statutes § 17a-112(j) that either parent is at this point in the case unable or unwilling to benefit from reunification efforts, and DCF in fact through the trial and thereafter has been providing services to each parent, with which the parents have been complying and from which the parents have been benefitting. General Statutes § 17a-112(j) provides in relevant part:
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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 . . .
Other DCF policy statements confirm that from its perspective coterminous petitions are to be filed when DCF (not the court) has determined prior to the neglect adjudication that reunification with the parent is inappropriate:
A coterminous petition is filed when the Department determines, prior to the neglect adjudication, that reunification with the parent is inappropriate and that termination of parental rights is the best tool to achieve the permanency plan for the child.
The purpose is to bypass the period of commitment and proceed directly to the statutory parent phase so that the Department can achieve the permanency plan (usually adoption).
DCF policy manual § 46-3-21.5.
DCF policy also provides that a coterminous petition can be filed "based on the following facts:"
A coterminous petition can be filed based upon the following facts: non-accidental or inadequately explained serious injury to a child occurs the child's sibling has been seriously assaulted or killed by the parent sexual abuse of a child by a parent
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the parent of a child, under the age of seven (7), has failed, is unable or unwilling to achieve such degree of rehabilitation as would encourage the belief that, within a reasonable period of time, considering the age and needs of the child, the parent could assume a responsible role in the life of the child and such parent's parental rights were terminated on another child
an infant has been abandoned
the child has been in the care and custody of DCF for fifteen (15) consecutive months or fifteen (15) of the last twenty-two (22) months.
Id.
Although Judge Dannehy terminated the father's parental rights to Lidyana after the father was defaulted, in the mother's trial he found the following:
On 1/9/04, Bianca disclosed to her maternal aunt, sexual abuse, such as several attempts to fondle her over clothing and placement of a hamster down her pants by her mother's boyfriend, Daniel M., Lidyana's father. Bianca further expressed concerns for her safety, her siblings' safety and her mother's safety in because of Daniel M.'s involvement with the family.
See Facts, paragraph 4, supra; May 18, 2006, memorandum of decision, 10-11.
The court also found that each parent behaved in a deceptive manner and lied to DCF:
The reality was, however, was that mother and [the father] engaged in a scheme to deceive the Department as to their living arrangements. [The father] provided the Department with a letter indicating that he was residing in Manchester at a time the respondent was living in Windsor. DCF became suspicious based on a number of factors including statements by Bianca as to her mother living with [the father]. A DCF investigator and the Windsor Police Department conducted an unannounced visit to mother's apartment in the middle of the night on August 11, 2005 and found [the father] hiding under the bed. It was determined that [the father] was living in the next door apartment and had unlimited access to Lidyana and potentially, Bianca and Alexander, once they were returned to mother's care.
Id.
The "sexual abuse of a child by a parent" and the "prior TPR — having a child under seven years of age and failure to rehabilitate" statements in the policy seemingly were DCF's bases in this case for the filing of the coterminous petition. However, after Judge Dannehy's May 8 and 18, 2006, decisions terminating each of the parent's rights, DCF ceased to provide services to the parents. In November 2007, DCF resumed the provision of services only after Daniel was removed and after the coterminous petition was filed. Within six days after Daniel's birth, after limited contact with each of the parents, and without provision of new services, DCF determined that each of the parents ? . . . has failed, is unable or unwilling to achieve such degree of rehabilitation . . ." to avoid its filing of the coterminous TPR petition.
3. DCF's filing of coterminous petitions for neglect and termination of parental rights six days after the birth of Daniel deprived each parent of the opportunity to seek to rehabilitate to the point where each could he determined to be an adequate parental resource for Daniel, e. g., DCF's filing of the TPR petition was premature and in violation of its federal and state statutory duties to provide services to and to facilitate reunification between each of the parents and Daniel before seeking permanency for Daniel other than with the parents.
DCF's filing of coterminous petitions for neglect and termination of parental rights six days after the birth of Daniel deprived each parent of the opportunity to seek to rehabilitate to the point where each could be determined to be an adequate parental resource for Daniel, e. g., DCF's filing of the TPR petition was premature and in violation of its federal and state statutory duties to provide services to each parent and to facilitate reunification between each of the parents and Daniel before seeking permanency for Daniel other than with the parents. DCF did not and could not allege that either parent had committed an act against Daniel that supported or justified termination of its federal and state statutory duties to seek to reunify Daniel with each parent. In November 2007, after the filing of the coterminous petitions, DCF did offer reunification services to the parents. As set forth above, each of the parents is participating in a 26-week Wheeler Clinic DOVE program to which each was referred by DCF. DCF has been unsuccessful to date in locating a program for the father to address the sexual abuse issues evidenced in his past behavior toward Bianca. Each parent currently is also participating in individual therapy at the Wheeler Clinic. The mother is waiting to enter a sexual abuse program for nonoffenders. While each parent was not completely cooperative with DCF after the removal of Daniel, and while it may ultimately be determined that one or both parents has failed to rehabilitate, at this time while the parents are cooperating with and benefitting from services approximately seven months after Daniel's birth and removal it is premature to and the court cannot find by clear and convincing evidence that DCF has made reasonable efforts to reunify Daniel with each parent and that either parent has failed to rehabilitate.
See Miller v. Commissioner of Corrections, 242 Conn. 745, 794-95 (1997).
While DCF has been providing reunification services to each parent, it has pursued the TPR petition. The effect of that conflicting approach (although the court does not conclude that it necessarily is DCF's intent) is that DCF could be seen to be "going through the motions" with respect to but not to be invested in such reunification services.
In In re Jorden R., 107 Conn.App. 12 (2008), the Appellate Court reversed a trial court decision that the mother was unable, because of her "immaturity," to benefit from services, and therefore DCF did not have to provide such services.
Jorden R. was a Ground C case where neither parent admitted that he or she had caused the serious injuries inflicted on Jorden. Cases involving Ground C allegations are another category of cases where DCF sometimes files coterminous petitions and sometimes (but not always) unilaterally ceases the provision of services to the parents without seeking a court order pursuant to General Statutes § 17a-111b.
In the Jorden R. case, the neglect trial and the TPR trial were consolidated, e. g., the petitions were treated as coterminous petitions. The Appellate Court ruled that it was "clearly erroneous" for the trial court to conclude that the mother was unable to benefit from services. In re Jorden R., supra, 107 Conn.App. at 19-20:
The respondent also argues that it was clearly erroneous for the court to conclude that she was unable or unwilling to benefit from reunification services and that, therefore, the department was not required to provide such services or to attempt to reunify the respondent with her child. We agree that it was clearly erroneous for the court to have determined that the department did not have to provide reasonable efforts to reunify the respondent with her child on the ground that she was unwilling or unable to benefit from such services.
(Footnote omitted.)
The Appellate Court continued:
The court, Foley, J., found, after the termination of parental rights hearing, that the respondent "facially" complied with all of the preliminary specific steps. It also found that the father failed to comply with several of the steps, most importantly, that he did not "wish to participate in services or counseling to address his anger, his drug abuse or his mental health issues." Despite the differing levels of participation in, and compliance with, the preliminary specific steps by the respondent and the father, the petitioner filed a petition to terminate the parental rights of both parents on October 27, 2005. As part of the petition, the petitioner represented that both the respondent and the father were "unwilling to benefit from reunification efforts." The petitioner relied on the severity of the injury and the failure of either parent to provide an adequate explanation of the cause of the injury to justify the department's refusal to provide reasonable efforts to reunify the respondent with her child. Specifically, the petitioner alleged that the respondent "is unwilling or unable to benefit from reunification services in that Jorden . . . suffered serious physical injuries while in her care . . . for which she has no viable explanation." The petitioner did not allege that the respondent caused the child's injuries, but only that collectively, she and the father would not or could not explain to department workers how the injuries were caused.
In re Jorden R., supra, 107 Conn.App. at 21-22 (footnote omitted).
The Appellate Court referred to the requirement in General Statutes § 17a-112 that the trial court must determine (by clear and convincing evidence) if it is to grant the termination of parental rights that DCF made reasonable efforts to reunify the child with the parent:
Pursuant to § 17a-112(j), to grant a petition for termination of parental rights, the court must find by clear and convincing evidence that the department has made reasonable efforts to reunify the child with the parent unless the court finds that the parent is unable or unwilling to benefit from reunification services. "The requirement of reunification efforts provides . . . substantive protection for any parent who contests a termination action, and places a concomitant burden on the state to take appropriate measures designed to secure reunification of parent and child . . . This requirement is based on the well settled notion that [t]he right of a parent to raise his or her children [is] recognized as a basic constitutional right." (Citation omitted; internal quotation marks omitted.) In re Devon B., 264 Conn. 572, 584, 825 A.2d 127 (2003).
In re Jorden R., supra, 107 Conn.App. at 26.
The Appellate Court further explained:
Cases involving the termination of parental rights are always difficult and require that the court seek a proper balance between the parent's constitutionally protected interest in the care, custody and control of the child and the interest of the state in protecting the child's health and safety. In re Christina M., 90 Conn.App. 565, 566-67, 877 A.2d 941 (2005), aff'd, 280 Conn. 474, 908 A.2d 1073 (2006). An important goal of the child protection statutes is to preserve family integrity by teaching parents the skills they need to nurture and care for their children. Id., 571.
Id.
The Appellate Court described its decision in In re Vincent B., 73 Conn.App., 809 A.2d 1119 (2002), cert. denied, 262 Conn. 934, 815 A.2d 136 (2003), where after DCF filed neglect and TPR petitions that were consolidated for trial, the father successfully completed an alcohol treatment program:
We review this court's analysis and determination in In re Vincent B., supra, 73 Conn.App. 637, for guidance. In that case, the petitioner filed a petition for termination of the father's parental rights on November 2, 2000, after having previously filed a petition for a finding of neglect. Id., 638-39. The trial court consolidated the two petitions on November 28, 2000. Id., 639. The court determined that the father was unwilling or unable to benefit from reunification services. Id., 640. The petitioner argued that the department had a six-year relationship with the family and that on prior occasions the father had rejected all services that the department recommended. Id., 642. The court had also previously terminated the father's parental rights as to two of his other children. Id. On appeal, this court reversed the judgment terminating the father's parental rights, including the determination that the department was not required to provide reasonable efforts to reunify the parent and the child. Specifically, this court noted that in May 2001, after the petitioner filed the petition to terminate his parental rights, the father had successfully completed a substance abuse program addressing his alcohol addiction. Id. The department's decision to refrain from providing services for the father, however, resulted from its interaction with him before he had completed the program. Id., 643. This court concluded that the father's "history of not availing himself of services as well as the department's filing of the petition to terminate his parental rights did not relieve the department of a continuing duty to make reasonable efforts [to reunify] the father with his child]." Id., 644.
In re Jorden R., supra, 107 Conn.App. at 26-27 (emphasis supplied).
The Appellate Court concluded its reasonable efforts analysis as follows:
The court properly observed that this single mother was immature and lacking in judgment. This circumstance is not as uncommon as one might wish it were in today's society. It may well be the fact that the department might be able to choose more effective parents than those to whom many children have been born. It must nevertheless take into account the rights of the parents as well as the rights of the child. As our Supreme Court has noted, "[a] parent cannot be displaced [simply] because someone else could do a better job of raising the child . . ." (Internal quotation marks omitted.) In re Jessica M., 217 Conn. 459, 467, 586 A.2d 597 (1991). This child was only five weeks old when he was injured and has not been in his mother's care since. The respondent was offered certain services through the department and did what she was asked to do. Even though for some of the time she disingenuously continued in some sort of relationship with the father, she eventually obtained a protective order against him and has subsequently notified her domestic abuse counselor of her dating activities. The department never attempted reunification services at least in part because it could not be determined how the child had been injured. In the absence of any suggestion that the respondent intentionally caused those injuries, she was entitled to reasonable efforts of the department to aid her.
In re Jorden R., supra, 107 Conn.App. at 28 (emphasis supplied).
While 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 § 17a-110a and § 46b-129(k):fn8
. . . (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 . . .
reunification of children with their biological parents is the initial goal when a child has been removed, see, e. g., § 46b-129(k) and § 17a-111b(a):
(a) The Commissioner of Children and Families shall make reasonable efforts to reunify a parent with a child unless the court (1) determines that such efforts are not required pursuant to subsection (b) of this section or subsection (j) of section 17a-112, or (2) has approved a permanency plan other than reunification pursuant to subsection (k) of section 46b-129 . . .
and see further General Statutes § 45a-717 (requiring written findings re efforts at "reunion" of parent and child); § 17a-112(j) (reasonable efforts at reunification finding required unless excused before TPR can be granted); § 17a-112(k); and 42 U.S.C. §§ 629, 629a, 629b, 1320a-9, 1437d, 1437f, 1439 and 5101.
General Statutes § 17a-112(k) requires the following written findings before a termination of parental rights disposition:
(k) 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.
CONCLUSION AND ORDERS:
DCF has proved by a fair preponderance of the evidence that on October 30, 2007, the date of the filing of the neglect petition, that Daniel was neglected pursuant to General Statutes § 46b-120(9)(B) and (C). Daniel is committed to the care, custody and guardianship of the commissioner of children and families.
Final specific steps are ordered initially to be proposed by DCF to the mother and the father by delivery to their attorneys on or before June 30, 2008. If the parties cannot agree on such specific steps, the attorneys shall notify the Child Protection Session clerk's office, and a hearing shall be scheduled and held at the Child Protection Session to determine such specific steps.
DCF did not prove by clear and convincing evidence pursuant to General Statutes § 17a-112(j) that as of the conclusion of the trial (1) either the mother or the father was unable or unwilling to benefit from reunification efforts; (2) DCF made reasonable efforts to reunify Daniel with each parent in accordance with subsection (a) of § 17a-111b; or (3) either parent of Daniel has failed, is unable or is unwilling to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the age and needs of Daniel, such parent could assume a responsible position in Daniel's life.